Understanding the Legal Process for Handwritten Wills in the Grand
An elderly man is on his death bed. He wants to leave his worldly assets to his favorite nephew, but he has no will. Finding himself alone in his room, he reaches over to his nightstand for pen and paper and, with a trembling hand, writes:
“I, Frank Johnson, being of sound mind, revokes all my prior wills and codicils and makes this new will. I hereby give all my worldly assets, my homes, farms, and accounts, to my nephew, David Johnson.”
Frank then signs and dates the document and, taking his last breath, expires. The question is whether that Will is valid. The answer is, yes, if your state, like Arizona, recognizes holographic wills.
A holographic will—a will that is handwritten and signed by the testator—can be a simple yet powerful testamentary instrument in Arizona. Whether born out of necessity, convenience, or a desire for privacy, a holographic will has the full force of law if it meets statutory requirements. However, probating such a document can present unique challenges and considerations.
For a holographic will to be valid last will and testament in Arizona the “material provisions” of the will must be entirely written and signed by the hand of the testator (the person making the will). Unlike formal wills, it does not require witnesses to be legally valid in Arizona. See, (A.R.S.) § 14-2503. That’s it. Simple, right?
After the Testator dies, probating a holographic will becomes a bit tricky. Probating a will is the process by which a court determines the validity of a will and authorizes the administration of the estate according to the decedent’s wishes. Arizona has two forms of probate: informal and formal. Informal probate is the easiest type of probate. The person probating the will never see the inside of the courtroom. It’s all done with the clerk of court. A formal probate means that a Judge must bless the probate of the will. In other words, going to court is required. Holographic wills are a one-way ticket to formal probate. You cannot informally probate a holographic will. That means probate will take more time and more money will be spent on attorneys. Formal probate is much more complicated than informal probate.
While the process of drafting a holographic will sounds straightforward, a holographic will can present special challenges:
Illegibility: If the handwriting is unclear, the court may have difficulty interpreting the testator’s wishes.
Ambiguity: Informal language or lack of detail can result in legal disputes among heirs or beneficiaries. This is the rule and not the exception.
Fraud or Undue Influence: Holographic wills can be more susceptible to claims of forgery, coercion, or incapacity, especially if prepared without legal assistance. One can imagine that there are significant risks of chicanery with holographic wills.
That said, there are advantages of holographic wills:
Cost-effective, as they do not require legal fees or witnesses.
Simple to create, especially in emergencies.
Private and confidential, as they can be prepared without others present.
There are also disadvantages:
Higher risk of dispute or litigation.
Potential for errors or omissions that render the will partially or wholly invalid.
Difficulty in proving handwriting and testamentary intent.
Possible failure to address complex estate matters.
Probating a holographic will in Arizona is a legally recognized pathway to distributing an estate, but it carries specific requirements and potential pitfalls. Success hinges on the clarity of the document, the ability to prove authenticity and intent, and the proper navigation of probate procedures. For those considering a holographic will, or tasked with probating one, consulting with an experienced Arizona probate attorney can help avoid complications and ensure the decedent’s wishes are faithfully executed.
About the author: Robert Sewell is a litigation attorney in Tempe, Arizona. He focuses his practice on litigation matters involving probate and trust and real estate disputes and selected commercial matters (typically involving decedent estates). He is widely considered among the best probate litigation attorneys in Arizona. He is also the host of the popular podcast, “Is That Even Legal,” which can be found at www.evenlegal.com or wherever you listen to fine podcasts.
