Law Outside the Box

In this posting, you will find the first page of a Will.  Can you spot what is wrong with this Will?  Hint:  There are three problems.

Are handwritten notes valid? 

Problem No. 1:  Abraham Simpson decided a few years after having his Will prepared that he wanted to make sure his grandson Bart received his stamp collection.  Abraham dated and signed his name and stated that Bart was to receive his stamp collection.  Regardless of his good intention, Abraham Simpson’s handwritten addition will not be considered valid in Minnesota even though he signed and dated the handwritten note.  Bart is out-of-luck

Problem No. 2:  Abraham Simpson decided one day that he no longer wanted Seymour Skinner to receive an inheritance.  Instead, Abraham wished to have Waylon Smithers receive 5% of his estate.  Abraham crossed out Seymour Skinner’s name.  This cross-out does not mean that Seymour Skinner is disinherited!  In fact, a probate court judge is likely to rule that Seymour Skinner is still entitled to 10% of Abraham’s estate despite the fact his name was crossed out by Abraham himself.  Crossing out someone’s name is not a way to disinherit that person out of a Will.  Waylon is out-of-luck  

Problem No. 3:  Abraham Simpson decides that Ralph Wiggum should also receive an inheritance.  He adds in Ralph Wiggum without signing or dating that addition to his Will.  It does not matter.  A court is unlikely to consider Ralph Wiggum as someone who can inherit from Abraham even if it is in Abraham’s handwriting.  Ralph is out-of-luck

Solution:

If Abraham Simpson wanted to make changes to his Will, he could have had the Will amended formally or else he could have had an entirely new Will prepared and this original Will destroyed. 

If Abraham chose to have his existing Will amended, he would need to have those changes to his Will prepared on a separate document and signed/dated/witnessed and notarized to ensure that the Will Amendment (also known as a Will Codicil) was valid.

The process of amending or changing a Will should never involve handwritten changes on the Will itself.  Even if those handwritten changes are done by the Will preparer or signed and dated, it is unlikely the court will consider those changes as valid.  In fact, the court is likely to invalidate those changes and revert to the original typed language of the Will.

Understanding the law on Holographic Wills in Minnesota can be confusing and downright misleading.  I visited a number of websites in preparing this article and read everything from the idea that Minnesota doesn’t recognize them under any circumstance to the conclusion that Minnesota does recognize them but only under certain conditions.

So what’s the truth?  Holographic wills: valid or not?

First, I think you have to understand what a holographic will is because the definition isn’t always clear.

Traditionally, a holographic will or handwritten will was viewed as something written on your death bed or something you threw together on a napkin at a bar.  You signed and dated it and that was that.  You’re good to go, right? 

Now, if you’ve prepared a will merely by writing or typing your wishes on a paper and then signing it and dating it with nothing else, I would say that your will isn’t valid and it won’t be recognized as valid by any court in Minnesota.  I don’t think there is any question about that if you talk with any estate planning attorney.

But let’s assume, you took your will that you prepared yourself and signed it in front of a notary without any witnesses.  Would that validate your self-prepared will?  I would argue that it isn’t likely that your will would be considered valid yet because Minnesota statutes are clear regarding having two witnesses present.

Generally speaking, the threshold for validity is to have your handwritten will witnessed by two individuals at the time you sign it.  I would say timing is key here as well.  If you prepared and signed it and then a couple days later you had witnesses sign it, they really didn’t witness it when you signed it.  They essentially need to be present when you signed it at that moment.

Now while you might be able to get away with not having your will notarized, I strongly encourage you and your two witnesses to sign the will in front of a notary.  Again, your goal is to make sure your will is valid.  Otherwise, what’s the point in even preparing a will if it isn’t going to be valid?  You might as well make a paper airplane out of the paper you would have used to make your will!

When it comes to preparing your own will, you can do it.  Minnesota doesn’t have any requirements barring you from doing it yourself.  Don’t let any attorney, legal website or family member tell you otherwise!

Of course, what your will covers and doesn’t cover is a whole different matter!  But the key here is how that will is executed/signed.  Make sure to follow the law closely on that point and at the very least, you’ll substantially reduce any likelihood your will might be invalidated after you pass away.

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