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"Albus" and "Severus" are making a will together. They do not want to bother with an attorney or witnesses, so Severus handwrites it, under the assumption that doing so will make the will holographic. They both sign the will. After Albus dies, there is a dispute over some of his property.

As far as I can tell, there are three possibilities here:

  1. The will is holographic for both of them (even though it is Severus' handwriting), so it is valid.
  2. Since Severus wrote it, the will is only holographic for the portions applying to his property. The parts applying to Albus's property (including the disputed parts) are invalid.
  3. Since Severus wrote it but not Albus, the entire thing is invalid.

Which is correct?

In Hoc Signo
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2 Answers2

23

Any answer would be pure speculation.

Joint wills that provide for the property of two separate people in one instrument simply aren't done (not truly never, but almost never).

N.B. Sometimes the term "joint wills" is used to refer to separate instruments (usually one for one spouse and one for the other spouse) prepared by the same person and prepared and executed at the same time with mirror image or related provisions prepared as part of an overall estate plan rather than as a single instrument that deals with the rights upon death for two testators. In contrast, a single instrument that is a joint inter vivos trust (i.e. a trust created during life rather than at death) that provide for the property of two settlors (usually spouses) are common in community property states - but the formality requirements for inter vivos trusts are different than the formality requirements for wills.

There is therefore no case law grappling with the issue presented by this question (the validity of a half-holographic joint will). It would be a question of first impression in pretty much all of the common law case law. And, there are reasonable arguments for any of the possible outcomes, so there is no way to predict how such a case would be resolved.

Usually, in cases of first impression, an exhaustive analysis of all of the facts that would otherwise be arguably irrelevant is undertaken, and the judge would do what seems most just under those precise circumstances.

The $500 they saved by not using an attorney or witnesses probably resulted in litigation costs of $50,000-$100,000 for their heirs.

ohwilleke
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8

The will is not a holographic will, but not for any of the three reasons.

In Texas, the Probate Code sets forth the requirements for a will and the exception for a holographic will. A holographic will is "a will written wholly in the testator's handwriting" and "is not required to be attested by subscribing witnesses."

This is not a holographic will because Albus signed it. It is not wholly in Severus's handwriting. It would not transfer any property from Severus to Albus or vice versa. Albus's signature is not even sufficient to witness Severus's will, because two witnesses are required.

I think what these two people want, assuming that each wants to leave all his property to the other, is a joint and mutual will, which has pros and cons as the linked article says.

Wastrel
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