Non-Attested Wills

• Author: Browne C. Lewis
• Pages: 533-555

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Chapter Twelve: Non-Attested Wills

12.1 Introduction

A large number of people die intestate because they do not take the time to execute a will. In

Chapter Eleven, we discussed the requirements necessary to execute a validly attested will. It is

thought that the required formalities deter persons from executing wills. Some jurisdictions permit

people to have less formal wills. These wills do not have to be witnessed and provide more

convenient options for persons who may be intimidated by the traditional wills process. The

majority of this chapter consists of an examination of the legal issues that occur when a person seeks

to dispose of his or her property by using a holographic will. This chapter also includes a brief

discussion of nuncupative (oral) wills.

12.2 Holographic Will

Uniform Probate Code § 2-502. Execution; Witnessed or Notarized Wills; Holographic

Wills.

(b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic

will, whether or not witnessed, if the signature and material portions of the document are in the

testator’s handwriting.

(c) [′xtrinsic ′vidence.] Intent that a document constitute the testator’s will can be established by

extrinsic evidence, including, for holographic wills, portions of the document that are not in the

testator’s handwriting.

A holographic will is a will that is handwritten. In order to be valid, the will must be written

in the testator’s handwriting and it must contain the testator’s signature. The entire will does not

have to be in the testator’s handwriting; however, the material portions, including those parts

showing testamentary intent, must be in the testator’s handwriting. About half of the states

recognize holographic wills. The challenges to these types of wills usually focus upon the validity of

the testator’s signature and the inclusion of information in the will that is not in the testator’s

handwriting. Internet sites like LegalZoom have pre-printed will forms that testator’s can fill out. If

these wills are not properly witnessed, they may be submitted to probate as holographic wills.

Therefore, courts have to determine whether or not those types of wills satisfy the requirements

necessary to be valid holographic wills.

12.2.1 Testamentary Intent

A will speaks at death, so the testator must intend for the gift to only take effect after he or

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she dies. However, the testator must have a present intent to make the transfer even though the

transfer will not be completed until after death. When evaluating the validity of a holographic will, it

is critical that the court determine whether or not the person meant for the instrument to be

testamentary in nature. The execution of an attested will includes a formal process. The lawyer, the

testator, and the witnesses gather for the signing ceremony. Thus, there is no doubt that the purpose

of the document that is signed by the testator and the witnesses is to govern the distribution of the

testator’s property after he or she dies. Since a holographic will may be written on a wall, a napkin,

an envelope or any other surface, the testamentary nature of the writing may not be so evident.

In re Kimmel’s Estate, 278 Pa. 435 (Pa. 1924)

SIMPSON, J.

One of decedent’s heirs at law appeals from a decree of the orphans’ court, directing the register of

wills to probate the following letter:

‘Johnstown, Dec. 12.

‘The Kimmel Bro. and ″amly We are all well as you can espec fore the time of the Year. I received

you kind & welcome letter from Geo & Irvin all OK glad you po ot your Pork down in Pickle it is

the true way to keep meet every piece gets the same, now always poot it down that way & you will

not miss it & you will have good pork fore smoking you can keep it from butchern to butchern the

hole year round. Boys, I wont agree with you about the open winter I think we are gone to have one

of the hardest. Plenty of snow & Verry cold verry cold! I dont want to see it this way but it will

come see to the old sow & take her away when the time comes well I cant say if I will come over yet.

I will wright in my next letter it may be to ruff we will see in the next letter if I come I have some

very valuable papers I want you to keep fore me so if enny thing hapens all the scock money in the 3

Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irvin

Kepp this letter lock it up it may help you out. Earl sent after his Christmas Tree & Trimmings I

sent them he is in the Post office in Phila working.

‘Will clost your Truly,

″ather.’

This letter was mailed by decedent at Johnstown, Pa., on the morning of its date-Monday,

December 12, 1921-to two of his children, George and Irvin, who were named in it as beneficiaries;

the envelope being addressed to them at their residence in Glencoe, Pa. He died suddenly on the

afternoon of the same day.

Two questions are raised: First. Is the paper testamentary in character? Second. Is the signature to it

a sufficient compliance with our Wills Act? Before answering them directly, there are a few

principles, now well settled, which, perhaps, should be preliminarily stated.

While the informal character of a paper is an element in determining whether or not it was intended

to be testamentary (Kisecker’s Estate, 190 Pa. 476, 42 Atl. 886), this becomes a matter of no moment