Holographic and Nonconforming Wills: Dispensing With Formalities-part Ii

• Publication year: 2003
• Pages: 53
• Citation: Vol. 32 No. 1 Pg. 53

32 Colo.Law. 53 Colorado Lawyer 2003.

2003, January, Pg. 53. Holographic and Nonconforming Wills: Dispensing With Formalities-Part II

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53

Vol. 32, No. 1, Pg. 53

The Colorado Lawyer
January 2003
Vol. 32, No. 1 [Page 53]

Specialty Law Columns
Estate and Trust Forum
Holographic and Nonconforming Wills: Dispensing With Formalities - Part II
by Herbert E. Tucker, David M. Swank, Thomas G. Hill

This column is sponsored by the CBA Trust and Estate Law Section. The column focuses on trusts and estate law topics including estate and trust planning and administration, elder law, probate litigation, guardianships and conservatorships and tax planning

Column Editor:

David W. Kirch, a sole practitioner in Aurora - (303) 671-7726

About The Authors:

This month's article was written by Herbert E. Tucker, David M. Swank, and Thomas G. Hill. The authors are shareholders and an associate, respectively, in the Denver law firm of Wade Ash Woods Hill & Farley, P.C. - (303) 322-8943.

This two-part article contains a primer on holographic and nonconforming wills, an update on applicable Colorado law, and a discussion of future issues and considerations regarding holographic and nonconforming wills.

This article addresses issues specific to holographic wills and those that do not conform to statutory formalities. The first part reviewed the laws of Colorado and other jurisdictions as they relate to requirements for and litigation of holographic wills.1 Part II provides an overview of the varieties of holographic and nonconforming wills. It discusses the effects that technology has had on wills, as well as possible changes in the way wills may be made and executed in the future.

Varieties of Holographic Documents

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 will 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 pen.2

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 onto the fender after a disc apparatus attached to the tractor trapped his legs, which were bleeding profusely. He used his pocketknife to scratch these words into the fender: "In case I die in this mess, I leave all to the wife. CECIL GEORGE HARRIS." Harris was found nine hours after the accident and was rushed to a 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.3

During World War I, a British soldier wrote a "trench will" on the back of a photograph of his Yorkshire sweetheart. He wrote, "In 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.4

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 grandniece and bequeathed $10,000 apiece to the nurses. He signed the garment with a cross, 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. A jury found the petticoat will to be genuine, but a judge ruled that the will's bequests to the nurses were null and void because the nurses also were witnesses to the will.5

Holographic will cases, besides involving documents written in the testator's hand on paper (or whatever surface may be convenient), often involve hybrid wills and "envelope wills." These types of instruments are discussed below.

Hybrid Wills

Many "do-it-yourself" products for the preparation of wills are readily available to consumers in the forms of computer software, Internet downloads, or office supply store kits. Some will kit forms contemplate that the testator will use the form to prepare a holographic will; other form kits might direct that the will is to be witnessed. However, the testator may not

follow the directions. If portions of the document are in the handwriting of the testator, the document's validity as a holographic will becomes at issue.

"Hybrid" holographic 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. Hybrid wills present interesting issues regarding what constitutes the "material portions" or "material provisions" of the document.6 Estate of Muder,7 a 1987 Arizona case, involved a hybrid will. Arizona's statute regarding validity of holographic wills required that the "material provisions" of a holographic will be in the handwriting of the decedent.

The will in question in Muder states, "I give, devise, and bequeath of this my gross estate, after all of my just debts, expenses, taxes, and administration costs of the estate have first been paid, settled, or compromised to. . . ."8 A blank line follows. In handwriting, the testator inserted in the blank, "my wife Retha L. Muder, our home and property in Shumway, Navajo County; car-pickup truck, trailer, & all other earthly possessions belonging to me, livestock, cattle, tools, savings accounts, checking accounts, retirement benefits, etc." The testator also listed in his handwriting the name of his wife as his executor and his name as the name of the testator. He filled in the dates in his handwriting and signed the document. The document in question also was signed by a witness and notarized.

In Muder, the testator clearly listed in his own handwriting all of the property to be devised under his will. He also specifically named his wife as the devisee to whom such assets should be distributed. The trial court admitted the will to probate and the decedent's daughters from a prior marriage appealed. The Arizona Court of Appeals reversed the trial court's decision to admit the will to probate on the ground that the handwritten parts of the document, standing alone, did not establish testamentary intent and, therefore, the document was not valid as a holographic will.9 A dissenting justice's opinion stated:

I suggest that, in interpreting [the statute], the law can productively distinguish between distributive content...