In many states, a will does not have to meet the witness`s requirements if it is handwritten by the testator (the person making the will). A handwritten will that is not signed by witnesses is called a holograph will. However, the «harmless error rule» is an exception. The court will execute a will that has no signature if there is «clear and convincing evidence that the deceased intended to make the document» his last wish. State laws vary in terms of requirements for a valid will, but in general, you need to make sure you have certain bases covered. Whether you have an estate planning lawyer, prepare your will, use an online service, or create a homemade will yourself, the requirements of a valid will will apply. Therefore, you need to make sure that you have met all the requirements of your jurisdiction, otherwise you risk your will being just another piece of paper. The requirement that wills be signed by witnesses exists to assist probate courts. A holograph will is not signed by witnesses who can testify to other requirements for a valid will, para. B example if the testator was in his good mind. Signing anywhere can cause confusion about the effects of the provisions that may occur after the testator has signed.
Historically, the entire will was void if substantive provisions appeared after the testator`s signature. See e.B. In re Winter`s Will, 302 N.Y. 666 (1951) (later repealed by N.Y. Est. Powers & Trusts Law § 3-2.1(a)(1)(A)). What constitutes the signature in a person`s «present» also has different interpretations. Most jurisdictions define attendance as the testator who knows where the witnesses were and what they were doing when they signed. Very few wills are challenged in court. When a dispute is made, it is usually a relative or close friend who believes that he should have received a share of the deceased`s property.
For a challenge to a will to be successful, the person applying to court must prove that there was undue influence that forced the will to be drafted as is. Or that the signature was forged or that the signatory was incompetent at the time of signing. There are other challenges that can be posed, but these are the biggest ones. For this reason, it may be preferable to have the signing of this important document drafted and supervised by a lawyer. These requirements are intended to ensure that the testator has designed the document as a final will and not as a plan or draft will. Other jurisdictions require that the attendance check be completed only if the witnesses are in the testator`s line of sight at the time of signing. One justification for admitting a holographic will is that the testator`s handwriting gives authenticity to the will. Holographic wills also allow a person facing imminent death to quickly draft a will without finding witnesses or a lawyer. In addition to the testator`s signature, most states also require the signature of two witnesses who are at least 18 years of age and witnesses of how the testator signs the will; some States require three witnesses. Consulting a final will therefore usually involves meeting with a small group of people, including the testator and witnesses. To make this affidavit, you and your witnesses must appear before a notary to sign this affidavit.
Some states consider this type of affidavit to be convincing evidence of the validity of a will. Lawyers are held to a higher standard when it comes to claims of undue influence. A bequest to a lawyer is particularly susceptible to a claim for undue influence due to the confidential and fiduciary nature of the client relationship. As a result, many courts presume that there was undue influence in cases where the lawyer wrote the will. See e.B. Carter v. Williams, 431 P.E.2d 297 (Va. 1993). A final will and a will are one of the most important documents a person will ever draft. Therefore, it is extremely important that they are signed and kept safe. Although it is possible to apply a will that does not have the right signature, it is not easy and very rare. The person named in the will as executor does not have to sign the will for it to be valid.
In fact, some jurisdictions explicitly require the signature of altruistic witnesses. In many cases, the executor is also a designated beneficiary, which would make him or her an interested party and would not have the right to be one of the witnesses. One of the reasons to make a will and estate plan is to take care of family members. A holograph will can cause doubt, confusion and stress for your loved ones. This may force them to wait longer before they can claim their inheritance. In the worst case, a holographic will can lead to fights between your loved ones. Some states require a holographic will to be completely in the testator`s handwriting. Other states allow partial seizure of a holograph will if important provisions, such as . B who will receive your property or who will be the guardian of your children, are included in the testator`s writing. Want to know more? Contact one of our lawyers to have your will drafted or revised.
Or click here to read a summary of a case involving an unsigned will. A will doesn`t need to be notarized to be valid, but the topic is included here as this extra step of involving a notary could be useful later. .