From time to time, clients come to see us with handwritten wills that their mother or father prepared. These types of wills are called “holographic wills”. While holographic wills are certainly legal, they can be problematic and are more difficult to validate than a more formal, typed last will and testament. Tennessee has strict requirements to prove the validity of a holographic wills. These requirements are outlined below.
What is a Holographic Will?
With the prominence of computers today, most wills are printed. However, handwritten wills are still common. These wills are legally known as “holographic wills”.
Many holographic wills are completed off the cuff. Usually this occurs when something unexpected happens or a person changes his or her mind about a bequest in the will. The person wants to write it down before forgetting or before it’s too late. But there could be any number of reasons a person chooses to draft a will by hand as opposed to typing it up and printing it. Three holographic wills allegedly written by Aretha Franklin were found in her home after her death in 2018 – each allegedly altering the other. +
What Are the Requirements Necessary for a Holographic Will to Be Legal in Tennessee?
In Tennessee, to be legal, a holographic will must:
- have been written by a person 18 years old or older;
- have been written by a person of sound mind; and
- have been written by the testator and no one else – the testator cannot dictate the will and someone else handwrite it, which is a nuncupative or oral will requiring other certain stipulations.
Additionally, the material provisions – like the signature, date, asset distribution – must all be in the testator’s handwriting.
How Does a Holographic Will Vary From Other Wills in Tennessee?
The primary difference between holographic wills and other wills in Tennessee is the requirement of witnesses. For most wills in Tennessee to be legal, two witnesses are necessary. These witnesses, according to Tennessee law, must attest to the testator’s will, sign the will as a witness in front of the testator and the other witness(es) after first:
- witnessing the testator sign the will; or
- acknowledging the testator’s signature; or
- signing the testator’s name upon his or her request in front of two or more other attesting witnesses.
According to Tenn. Code Ann. § 32-1-105, a holographic will also requires at least two witnesses, but these witnesses do not need to be present during the signing of the will. Rather, the witnesses must be able to verify that the handwriting is that of the testator at the time of probate.
A recent high-profile case has brought this matter to the forefront. Kristoff St. John, a long-time actor on the Young and the Restless, died in February 2019 on Super Bowl Sunday. He left a handwritten will. His daughter is now contesting the holographic will, stating that half of it is not written in her father’s handwriting. If true, this would likely invalidate the will in most states and in Tennessee. The handwriting must be in the name of the person who is making the will.