Fleming & Curti, P.L.C. - Woman’s "Holographic" Will Is Valid But Costly To Interpret

APRIL 10, 2000 VOLUME 7, NUMBER 41

Woman’s "Holographic" Will Is Valid But Costly To Interpret

Although most people might intend to use a lawyer to draft their wills and estate planning documents, there is no legal requirement that an attorney be involved. Often, in fact, non-lawyers prepare their own documents and do just fine. Sometimes they manage to complicate their estates and the lives of their families and beneficiaries.

In most states (including Arizona) a will must include the signatures of the individual and two witnesses in nearly every case. One exception to that requirement in Arizona (and in just over half of the other states) is what is called a "holographic" will; such a will must be substantially or completely in the signer’s handwriting, and must be signed, but no witnesses are required.

Problems often arise when individuals rely on holographic wills to distribute their estates, however. Clarice Temple Carney’s family learned that after she died and her handwritten wills were found.

Ms. Carney apparently did not think much of lawyers or judges. In 1992 she handwrote a will listing her assets, directing division of her estate into equal shares for three of her four children, but leaving nothing to her daughter Darnell C. Adams. She included one last instruction: "No court or lawyers are needed."

Two years later Ms. Carney wrote another, similar, will in her own handwriting and signed it. Almost a year after that she scratched through just one of the provisions of the more recent will, wrote "void" next to it, and added a new caveat: "Anyone of these heirs who cares to hire a lawyer to see that this will is executed forfeits his inheritance." Three months later she also wrote a separate document leaving $10,000 and a ring to her daughter Darnell.

What was the effect of all Ms. Carney’s holographic wills? The Mississippi Supreme Court decided that she had not meant to entirely revoke her earlier wills by writing "void" on just a part of one will, and that the effect of the five conflicting documents was to leave her daughter the ring plus $10,000 while dividing the remaining estate among her other three children and, in turn, their children. Matter of Carney, April 6, 2000.

Was that what Ms. Carney really wanted? It probably was, except for one thing. Ms. Carney had been crystal clear about not wanting to have lawyers or judges involved in handling her estate, and her handwritten wills completely failed to meet that goal. In fact, her children spent over two years and unknown amounts of money in court and legal fees wrangling over the effect of her holographic writings.

If a lawyer had prepared Ms. Carney’s will could her daughter still have filed a contest? Of course, but a few dollars spent on a lawyer during her life would almost certainly have saved Ms. Carney’s children many times the amount in total legal fees.

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