Law Outside the Box

Are you thinking about changing your will?  I cannot tell you how many times I have seen wills where people cross out things on their will assuming that by doing this, they are okay.   Another common mistake I see is when people make additions by writing in the change they wish to make and initialing it.  In every case I have ever handled in court, the judge has invalidated these changes.

Two things to remember about your will:

1 – If you want to change your will, never write on it.

2 – If you want to change your will, have a will amendment (i.e. codicil) prepared or have an entirely new will drafted.

Recently, I was in court attempting to probate a will where the person who had died wrote on his will a number of times.  Whenever he wanted to change who he wanted to receive what, he would cross out the original provision and write his new wishes in the margin.  He would then initial it.  Nobody saw him make these changes however because he prepared his own will initially a number of years earlier and kept it to himself.

After he passed away, his daughter found his will and attempted to have it probated.  However, the court produced several costly delays because of the issues relating to all of the writing on the will.  The judge went through each writing in court and invalidated all of these handwritten changes.  He could have invalidated the entire will but chose to revert it back to the original language. 

I’m sure the deceased wouldn’t have appreciated this; but it would have greatly benefitted him to take it to an attorney whenever he wanted to make a change.  A will amendment is very inexpensive most of the time and can be validly prepared to ensure the deceased’s changes are enforceable..

Have you ever handled a situation where someone wrote on their will and then you had to probate it later?

In Minnesota, there is much confusion as to whether a handwritten will (i.e. holographic will) is valid or not.  Some attorneys will tell you that handwritten wills are not valid at all.  However, this is not necessarily the case and there have been many times a handwritten will was admitted into probate court.

To be valid, a handwritten will needs to be witnessed by two individuals following when the writer of the will prepares it (the principal).   Those two individuals must actually sign that handwritten will as well to prove that they witnessed it being prepared and signed by the preparer/principal.  In addition, the preparer/principal of that will needs to be of sound mind (i.e. he/she needs to understand what he/she is doing by preparing and signing the handwritten will).

Here are 6 additional tips relating to the handwritten will:

1 – A handwritten will that is merely notarized but not witnessed by two individuals is invalid under Minnesota law;

2 – A handwritten will should be handwritten by the principal party  (i.e. if it is Joe Smith’s Will, Joe Smith should actually be writing it in his own handwriting and not having someone else write it for him);

3 – If the body of the will is not in the principal’s handwriting, then it must be signed by the principal or at the principal’s explicit direction (i.e. if Joe Smith didn’t handwrite his own will, then he must still evidence his agreement to the will with his own signature).

4 – Although implied, the handwritten will should be dated as of the date it was signed by the principal and the witnesses;

5 – Although technically not required, the handwritten will should be notarized at the same time it is signed and witnessed.  This will reduce potential confusion on the part of the court when the will is probated;

6 – The witnesses should be disinterested individuals so as to reduce arguments against the validity of the will.  (If Joe Smith has two of his sons as witnesses, the likelihood that another family member eventually challenges the validity of the will could be significantly higher);

Although a handwritten/holographic will is not the general means recommended to preparing a will, there are ways to create it so that it is valid.  Beyond that, what the will provides and whether such terms are enforceable are matters for the court to decide.  In any case, it’s a good idea to have a knowledgeable estate planning attorney review the will while the principal is still alive.

If you have ever tried to probate a handwritten/holographic will, what was your experience?