A holographic will is another term for a handwritten last will and testament. While some states don’t recognize holographic wills, the state of Arizona accepts handwritten wills as long as they adhere to the state’s probate laws. The laws regarding holographic wills are slightly more relaxed than the laws regarding a traditional will, and include the following requirements:
- The testator (aka the person writing the will) is 18 or older
- The testator has a sound mind
- The signature and material provisions of the will are in the testator’s handwriting
- The will wasn’t drafted under undue pressure or influence
ARS 14-2501 states that only “a person who is eighteen years of age or older” can make a will.
This is pretty straightforward since minors can’t own property, so they can’t bequeath assets by will.
In common law, “testamentary capacity” is the legal term that’s used to describe an adult’s legal and mental ability to draft, sign, or amend a valid will. Testamentary capacity is often described as a “sound mind and memory” or “disposing mind and memory.” Under the definition, adults who are partially or fully mentally incapacitated are precluded from writing a will. Generally speaking, mental incapacitation includes adults who are in a coma, are suffering from advanced stages of dementia or Alzheimer’s disease, or who have an illness, injury, or disability that severely limits their mental faculties.
Note that incapacitated adults aren’t able to issue any legally binding estate planning documents, including a power of attorney, a living will, or a trust. Instead, an incapacitated adult would need a court-appointed guardian or conservator to manage their assets and affairs on their behalf. A guardian or conservator wouldn’t be able to draft a will, but he or she could accomplish the same task by establishing a living trust to transfer property to beneficiaries when the adult passes away.
Matching the Testator’s Handwriting
ARS 14-2503 dictates that holographic wills are valid “if the signature and the material provisions are in the handwriting of the testator.” Material provisions include any clauses in the will that name beneficiaries and their gifts. The testator is also required to include wording that indicates that he or she intends and wishes to dispose of their property with the writing. The court will usually compare the holographic will to other documents written by the testator to verify their handwriting and authenticate the will.
Undue Pressure or Influence
If the testator was pressured, manipulated, or blackmailed into writing part or all of the will, the court will invalidate the will. Fraudulent wills with forged material provisions and/or signatures are invalid, too. Unfortunately, most cases that involve undue pressure or influence involve elder abuse by a family member or close friend.
While it’s certainly recommended to have your holographic will signed by two witnesses, it’s not required for handwritten wills. In contrast, a typed will requires the signatures of two witnesses (ARS 14-2502). In either case, the court may call on witnesses to appear in court and testify to the authenticity of the will.
Note that while some states require “disinterested” witnesses, Arizona law does not (a disinterested witness is someone who is not listed as a beneficiary in the will). That said, it’s always recommended to use disinterested witnesses to avoid any conflicts of interest that could tie up probate court proceedings if someone contests the will. Such a will contest would likely fail, but it can still prolong the probate process and delay the transfer of assets to intended beneficiaries.
To qualify as a self-proved will, the document must be signed by two witnesses and notarized (ARS 14-2504). Again, witnesses aren’t required for holographic wills, but the benefit of a self-proved will is that the court won’t need to summon your witnesses to court to authenticate the will. This can really speed up the probate process, which is always a good thing for your beneficiaries.
What happens if a Will is Invalidated?
When a will is invalidated by a probate judge, the probate process for the testator’s estate continues as if the decedent didn’t leave a will. Estates that aren’t covered by a will are referred to as “intestate,” and the estate’s assets will be distributed to the decedent’s legal heirs according to the state’s intestacy laws. If select portions of the will are invalidated, then only the provisions that are invalidated are subject to intestacy laws.
In the state of Arizona, the surviving spouse and children have a priority claim to intestate assets (ARS 14-2102). If the decedent was married and only had children with his or her surviving spouse, then the entire estate would go to the spouse. If the decedent was married and had children with another partner, the surviving spouse would receive half of the estate, and the remaining half would pass to the children from the separate relationship(s).
In cases where the decedent doesn’t have a surviving spouse, the distribution rules can get a little tricky. According to ARS 14-2103 and 14-2105, the estate will pass to the decedent’s legal heirs in the following priority:
- To the decedent’s descendants by representation (includes children, grandchildren, great-grandchildren, etc.)
- If there are no surviving descendants, to the decedent’s parent(s)
- If there are no surviving descendants or parents, to the decedent’s siblings by representation (includes nieces and nephews)
- If there are no surviving descendants, parents, or siblings, to the decedent’s grandparents by representation (includes aunts, uncles, and cousins)
If there are no surviving legal heirs, or if the court cannot contact the surviving heirs, the state may claim the estate. After an estate has been claimed by the state, a previously unknown heir may come forward to claim the estate but known heirs who were served notice and repeatedly failed to respond typically forfeit their claim to the estate.
Key Provisions in a Will
Whether you choose to type or hand-write your will, be sure to include the following key provisions:
- State your intent and wish to dispose of your property with the will
- Name a guardian for minor children or adult children with a disability
- Nominate a personal representative to manage your estate
- Clearly identify your beneficiaries (include at least their full legal name and date of birth)
- Clearly bequeath all assets that are subject to probate
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.