Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Funky Holographic Wills

Since the beginning of recorded history, people have created plans for testamentary disposition of their property. The drafting and execution of wills were codified and formalized in the Statutes of Wills of 1540, the Statutes of Frauds (1677) and the Wills Act of 1837. The formalities demanded by those laws are still observed in the current law of wills. Nonetheless, cognizant of the fact that some wills are made in haste and in the testator’s own handwriting, the law of wills historically has included provisions for validation of handwritten (holographic) wills.

Not all wills are drafted by attorneys or signed before qualified witnesses. Consider these examples of unusual situations in which holographic wills were written.

- Beth A. Baer, who was blind, wrote her will with a pen that had run out of ink. The blank paper was filed for probate in Los Angeles Superior Court after a handwriting expert made out the words of the will from indentations left on the paper by the empty pen.

- One of the wills on file at the Surrogate Court in the District of Kerrobert, Canada, was written on a fender cut from a farm tractor. The testator scratched the will into the fender after a disc apparatus attached to the tractor trapped his legs, which were bleeding profusely. The farmer used his pocket knife to scratch these words into the fender “In case I die in this mess, I leave all to my wife CECIL GEORGE HARRIS.” Harris was found nine hours after the accident and was rushed to the hospital where he died shortly thereafter. A few days later, a man investigating the accident site noticed the fender. The fender was removed and admitted to probate as the decedent’s last will and testament.

- During World War I, a British soldier wrote a “trench will” on the back of a photograph of his Yorkshire sweetheart. He wrote, “In the event of my death, I leave all my effects and money to this young lady.” After he was killed in the line of duty, the photo was found and admitted to probate.

- Unable to locate a blank sheet of paper, George Hazeltine of Los Angeles dictated his will and had one of his two in-home nurses write it on her white petticoat. He left the bulk of his considerable estate to a grand-niece and bequeathed $10,000 apiece to the nurses. He signed the garment with an “X” being too weak to write his name and the two nurses signed as witnesses. The petticoat, as well as an earlier formal will executed by Hazeltine at a bank, were offered for probate. The jury found the petticoat will to be genuine, but the Judge ruled that will bequests to the nurses were null and void because the nurses were also witnesses to the will.

In 1973, Colorado adopted the Uniform Probate Code. The Uniform Probate Code contains specific statutes permitting holographic wills. The original Uniform Probate Code statute required the “material provisions” of the holographic will to be in the handwriting of the testator. In 1995, Colorado adopted the Uniform Probate Code II which amended the holographic statute to require only the “material portions” of the document be in the handwriting of the testator. The purpose of changing “material provisions” to “material portions” was to leave no doubt about the validity of the will in which immaterial parts of the provisions – such as “I give, devise, and bequeath” – are not in the testator’s handwriting. The material portions of the dispositive provisions, however, must be in testator’s handwriting and must be signed by the testator. The dispositive provisions have been interpreted as words identifying the property and the person who is to receive the property.

Only a minority of jurisdictions require a valid holographic will to be dated. The Colorado Court of Appeals held In re Estate of Grobman that there is no statutory requirement that the holographic will be dated. Most states that have adopted the Uniform Probate Code, such as Colorado, permit both intrinsic evidence (on the face of the will) and extrinsic evidence (not contained on the face of the will) of the testator’s signatory intent and testamentary intent. The starting place for examining intrinsic evidence should be an evaluation of the completeness of the holographic document. For example, whether it included: (1) a residuary clause; (2) a clause appointing a personal representative; (3) a place at the end for the testator’s signature; (4) a place for witnesses’ signatures (although not necessary); (5) a space for notarization (also not necessary). The words that precede as well as follow the testator’s name also can constitute intrinsic evidence.

The examination of extrinsic evidence would include prior wills of the decedent. Such issues might include an examination of whether: (1) the testator had a history of writing holographic wills or whether prior wills were typed and prepared by attorneys; (2) prior drafts of handwritten wills were mailed to family members; (3) the testator made statements to witnesses regarding the holographic document before and at the time the document was prepared; (4) witnesses made statements as to their belief that the document was prepared by the testator with intent that it be his or her last will; (5) any statements that were made by the testator to the custodian of the will during the delivery of the document; and (6) the acts of the testator that were consistent with the notion that the holographic document was his or her last will.

All states that recognize holographic wills require that the testator’s signature be handwritten. Although the trend of most courts and legislatures throughout the United States is toward greater flexibility in accepting a variety of documents as holographic wills, the testator’s signature remains an essential requirement. The signature represents demonstrative evidence that the testator signed the holographic will with the intent to authenticate the document. Some states require that the testator’s signature be at the end of the will. However, the vast majority of states, including Colorado, do not require the testator to sign at any particular location on the document.

Holographic will cases, besides involving documents written in the testator’s hand on paper (or whatever surface may be convenient), often involve hybrid wills. Hybrid wills are those in which some portions of the document are handwritten, while other portions consist of text that is computer- generated or preprinted on a form. Many “do it yourself” products for the preparation of wills are readily available to consumers in the form of computer software, Internet downloads, or office supply store kits. Some will kit forms contemplate the testator will use the form to prepare a holographic will; other form kits may direct that the will be witnessed and/or notarized. However, the testator may not follow directions. If portions of the document are in the handwriting of the testator, the document’s validity as a holographic will becomes an issue.

A number of cases throughout the United States have addressed whether the testator’s signature on an envelope containing his or her otherwise unsigned holographic will meets the signature requirement. Courts that have denied probate of unsigned holographic wills where the testator’s signature appeared only on an envelope have done so using the rationale that the writing on such an envelope did not evidence the decedent’s signatory intent but supported the inference that the decedent intended to identify the contents of the envelope.

In July of 1995, as part of the adoption of the Uniform Probate Code II, Colorado codified the “harmless error doctrine” dealing with writings intended as wills. C.R.S. § 15-11-503 was amended to narrow its application to minor mistakes. The section now applies “only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent’s spouse.” The Colorado Court of Appeals has held:

“In application, the larger the departure from prescribed, formal execution, the greater the burden on the proponent to prove by clear and convincing evidence that the instrument reflects the testator’s intent ... The statute is limited in its application to those instruments which are not executed in strict compliance with the requisites of C.R.S. § 15-11-502, not to those which are not executed at all.”

Advances in technology has lead to a push for broader definition of a “writing” that would allow testators to make their wills using recording devices. There are reports of wills being made on phonograph records in early twentieth century. Hollywood even helped by inspiring video taped will executions in motion pictures. One can hardly forget the opening scene in the movie “The Testament,” based on a John Grisham novel, which depicts a gentlemen video taping his reading of his holographic will to his heirs shortly before he jumps out of a window to his death.

Video taping will executions has become popular with some estate planners, who believe that the effect of showing a potential contestant a dramatic video tape demonstrating the testator’s capacity and desires will avoid a future will or trust contest. Estate planning lawyers frequently ask probate litigators when they anticipate will contest litigation, whether they should video the execution of their client’s will.

Generally, probate litigators view video will executions as a risky proposition. On the one hand, a video of a will execution could help the proponent establish the testator’s testamentary capacity, as well as dispel any notion that there was undue influence or forgery. On the other hand, a video could be used by the contestant or his or her forensic expert as further evidence that the testator lacked testamentary capacity and that the will was a product of undue influence. The fact that the lawyer arranged for a video will execution could raise red flags that the video was a deviation from the drafting attorney’s normal routine and that he had specific concerns regarding the client’s capacity prior to drafting the will.

Electronic signatures are commonly used today in “e-business” transactions. The use of this technology raises important questions for will drafters and probate courts in the twenty-first century. Could an electronic signature act as valid authentication for a will that exists only in electronic form or stored on a disc? Would an electronic will be more vulnerable to fraud and forgery than a written will? What issues are involved in the permanence and storage of electronic wills? The need for electronic storage has become increasingly important given the fact that most Denver metropolitan courts will no longer store original wills. There is currently a subcommittee of the Colorado Bar Association Trust & Estate Section that is working with the Secretary of State’s Office regarding cloud storage of estate planning documents. Storage of electronic estate planning documents by the Secretary of State would be available to lawyers who cannot find, after due diligence, the whereabouts of their clients.

The modern trend followed by courts throughout the United States is to relax the technical requirements for holographic wills. In Colorado, the applicable statute governing holographic wills has been amended to require only that “material portions” of a document be in the decedent’s handwriting. Moreover, testamentary intent may now be established by referring to typed or preprinted language on a hybrid will, as long as the distributive content is in the decedent’s handwriting. As set forth above, there are many varieties of holographic and nonconforming wills. This area of the law will undoubtedly be affected by technological advancements such as electronic signatures and digital storage of documents.

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