A Will is a legal instrument that generally expresses your intent on who will inherit your property as well as how and when your beneficiaries will inherit it. Although an attorney usually draws up a Will, Arizona law permits you to handwrite your own Will so long it also meets certain requirements. The person who writes the Will is called a testator.
A handwritten Will is also called a holographic Will. Some Wills are written in emergency situations where someone is facing imminent death, or feels that way, does not have access to an attorney, or is isolated. This may include soldiers in combat situations.
Requirements for a Handwritten Will
To ensure that your handwritten or holographic Will is valid, be sure that you follow these requirements:
- Write out the Will in your handwriting. In other words, do not type it or have someone else write it for you.
- You must be at least 18 years of age.
- Sign the Will document. Do not print your name or just initial it, or just sign the envelope containing the Will.
- Dating the Will is not necessary but you may wish to do so anyway.
- Express your intention or wish to distribute your property to beneficiaries.
Unlike a regular Will, a holographic Will does not require that it be signed by witnesses or that it be notarized. A non-holographic Will requires two witnesses and a notary.
To ensure its validity, there must be some evidence that the Will was written by the testator. A close relative or friend could testify that the handwriting is that of the testator or a handwriting expert could be retained to confirm it.
You must also have had the intellectual capacity to create the Will. There is a presumption that the testator had the intellectual capacity and it is incumbent on anyone challenging the Will’s validity to produce evidence to the contrary. This might include medical records and testimony from physicians or medical providers or other witnesses that the testator was suffering from dementia, delusions, or mental illness at the time the Will was drafted and signed.
What Can Invalidate a Handwritten Will?
While your handwritten Will has the same legal force and effect of a printed Will that meets its own requirements, you do risk having a probate court rule that it is invalid if you fail to follow certain rules. Ways that your holographic Will could be invalidated include:
- You were under the age of 18 when you wrote it.
- You used a pre-printed or typed form with your own handwritten provisions but did not write out material portions of the Will. For instance, you typed out that you wished to leave $5000 to your cousin Edna.
- You failed to sign it in your own handwriting.
- Someone else wrote the Will.
- You lacked testamentary capacity.
- You were subject to undue influence.
- Other statutory violations.
Intellectual or testamentary capacity means that you were able to recognize the beneficiaries of your Will (friends and relatives); that you understood the nature, value and extent of your property; and knew what it meant to make a Will and to distribute the assets. The interested party contesting the Will must show that the testator’s lack of capacity affected the terms of the Will and assets were distributed in a way inconsistent with the testator’s expressed wishes.
If you were heavily intoxicated or under the influence of hallucinogenic drugs when you wrote your Will, this could conceivably invalidate the Will. The person challenging the validity of the Will would need witnesses to attest to your impaired state of mind at the time the Will was signed. Challenging a Will on this basis would require substantial proof that you lacked the requisite testamentary capacity.
Undue influence refers to a person, usually a relative, confidante or associate of the testator, who takes an unfair advantage of the testator’s weakness of mind, vulnerability or distress to impact a provision in the Will. It is very difficult to prove that someone pressured the testator to omit someone or to leave a portion of the estate to someone that the testator would not otherwise have done.