A handwritten will, written by the testator (the deceased, or the person leaving things to others via the will), is known as a “holographic” will. Some states require a holographic will to be entirely in the handwriting of the testator, but Colorado requires only that the “material portions” of the will be handwritten and that it be signed by the testator§ 15-11-502(2), C.R.S. In Colorado, a holographic will need not be witnessed or notarized to be valid. Id. The will must include some evidence that the testator intended that the document dispose of his/her property upon death and the evidence can come from the document itself. § 15-11-502(3), C.R.S.
A holographic will can be used as the document that determines the disposition of the testator’s property. It may be enforced if the intent of the testator can be determined, the testator had testamentary capacity to execute the will, and the testator was not under any undue influence of any party or an insane delusion. There are legal cases defining the scope of those requirements.
However, there are pitfalls associated with the use of holographic wills, including that they may be more-easily challenged than wills written by an attorney and/or which are witnessed, attested, and signed before a notary public.
Some issues that we have seen in a probate litigation context surround the attempted probate of holographic will. Litigation can be costly and usually involves heirs or beneficiaries who are at cross purposes about the testator’s intent or ability to make a will (or the influence that a beneficiary may have had over the testator). Some situations we have seen are:
- The holographic will does not clearly dispose of all of the testator’s property;
- The holographic will was written in an end-of-life setting close in proximate time to the death of the testator, which may leave considerable room for litigation regarding testamentary capacity;
- The holographic will does not agree with another estate-planning document, like an intervivos trust, and both documents purport to be the final dispositional document of the testator;
- The holographic will was drafted very close in time to the suicide of the testator;
- The holographic will attempts to disinherit a “natural” heir (i.e. child) of the testator, without any explanation by the testator why this was done, and the heir contests the validity of the document.
Having an attorney draft up a will is not a guarantee that heirs or beneficiaries will not contest the validity of testamentary documents. However, a will drafted by an attorney, and/or a will which is duly witnessed by two witnesses, and which is notarized, is more likely to be upheld by a court or respected by beneficiaries or heirs than a holographic will without these procedural safeguards.
If you have further questions about your estate planning documents, please do not hesitate to call us at (303) 443-6690.
By Jessica H. Catlin