A holographic will is a legislatively authorized alternative to the attested will. It allows a testator to make a valid will without witnesses, typically on the condition that the instrument is handwritten to a specified degree and signed.
Functionally, a holograph statute substitutes handwriting for attestation: instead of relying on witnesses to support authenticity and deliberation, the law relies on the testator’s handwriting as the primary authenticity safeguard.
Because holographic wills reduce the ceremony of execution, they embody a policy judgment: some wills should be enforceable even without witnesses, so long as other evidence strongly supports authenticity and intent.
Sources
John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987):
An alternative formal system for so-called holographic (handwritten) wills is permitted to testators in half the American states, mostly western jurisdictions where civilian legal regimes have been influential, but also in Pennsylvania, Virginia, and now-through the medium of the Uniform Probate Code-Michigan and New Jersey.4 Several Canadian provinces recognize holographs, but England and the Australian states do not. In effect, a holograph statute allows the testator to substitute handwriting for attestation, and thus entails a significant reduction in the level of formality.5 The testator may execute his will without witnesses, but it must be "materially" (or in some states "entirely") in his handwriting.
4.The American holograph states, as identified in ACPC Study, supra note 3, are Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
5. For discussion of the tension between the two levels of formality, see infra note 235.
Further Reading
Hani Sarji
New York lawyer who cares about people, is fascinated by technology, and is writing his next book, Estate of Confusion: New York.
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