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?
