Non-traditional types of wills, Pt. 1
By Connie Fontaine
The American College
A last will and testament is essential to any estate plan. Generally, a will must be formally witnessed to be valid, enforceable and accepted for probate. In this article, we examine some less traditional wills.
A last will and testament is essential to any estate plan. Generally, a will must be formally witnessed to be valid, enforceable and accepted for probate. If state requirements are met, formal wills are recognized in all jurisdictions.
In previous articles, we have addressed some of the characteristics of traditional wills. In this article, we examine some less traditional wills.
Approximately half the states recognize a will that is written by the testator’s (the person writing the will) own hand rather than being typed or printed. This type of will is called a holographic will.
Although the fundamental premise of a holographic will is that it is entirely handwritten, some states accept holographic instruments with printing, such as a form will, provided all material provisions are in the testator’s handwriting.
Holographic wills are usually required to be signed at the end but need not, depending on state law, be witnessed. Occasionally, those familiar with the testator’s handwriting or handwriting experts may be necessary to verify the authenticity of an unwitnessed holographic will.
Interestingly, sometimes indications or references to the testator other than a signature may suffice to validate a handwritten will. For example, a father’s words saying, “Dad” or “From Dad with love” at the end of the writing may be sufficient for probate.
Many states require that a holographic will be dated by the testator. If the testator types, prints or audibly records the will, it is not considered a holographic will. At least one state requires for the will to be found among the testator’s valuable papers in order for it to be accepted as a valid will.
In truth, however, it is doubtful that a court could be assured this requirement was actually met. On the opposite side of the requirements continuum, there are cases where holographic wills written on numerous pieces of paper were recognized as valid by probate courts even though the pages were not fastened together.
Holographic wills are common and are created for numerous reasons. Some of the advantages associated with holographic wills include:
- Cost savings: Holographic wills avoid costly attorney fees.
- Simplicity: Holographic wills are easy to create.
Nevertheless, in all states, holographic wills are subject to closer scrutiny than more formally executed wills. Such wills are considered to be somewhat suspect under the law because they lend themselves more easily to undue influence of overly anxious beneficiaries. Exerting pressure on a testator is more obvious and difficult to carry out when a will is drafted by an attorney. Nuncupative wills
Nuncupative wills are oral wills made by a testator, in the presence of disinterested witnesses during a fatal illness shortly before death when it is impossible to write a will. Where such wills are permitted, usually two witnesses must submit an affidavit declaring the testator’s final wishes. The testator’s verbal declaration must be reduced to writing within a short period of time, such as 30 days, after the verbal will is made.
Some states recognize nuncupative wills but most do not. Those states recognizing them do so only when the testator is in imminent peril of death (and the testator does die), or is in the armed forces while in actual military or naval service during a time of conflict.
Only personal property can be disposed of under a nuncupative will. Execution formalities for the written version of the testator’s verbal will, such as the number of witnesses, are usually the same requirements a state imposes for traditional written wills. Orals wills are more likely to be challenged than other types of wills.
Joint and mutual wills
Joint wills and mutual wills are sometimes called “love wills.” In this case, two related persons may decide to execute a single joint will if they have a common scheme for the disposition of their property.
Most often, a joint will is written by a husband and a wife. Although both parties sign the one document, it provides for the separate distribution of property by each testator’s executor. In the majority of cases, this arrangement is done for convenience and is not intended to be irrevocable.
As a practical matter, joint wills may be problematic upon probate. The original will for both parties is admitted to probate at the death of the first party. This means that if the surviving party does not write a later will, it could be cumbersome and costly to search for the original will that was filed with the probate court at the death of the first decedent. Joint wills are not drafted often because most testators want to preserve the right to change their will provisions after one spouse dies.
A joint will should be distinguished from a mutual will, sometimes referred to as a “mirror” or “reciprocal will.” Mutual wills exist when two or more parties concur to have their property distributed in an agreed upon fashion upon their death. They execute separate wills that have reciprocal, mutually binding provisions. In some jurisdictions, questions may arise as to whether the living individual became contractually bound at the time the original will was filed because the parties bound themselves legally, or at least morally, to dispose of their property according to a prearranged plan. The supposition here is that the couple created a will contract.
After the death of one of the parties, it is questionable whether the second party is bound to the preexisting plan or is free to change the will. Courts in some jurisdictions have held that a mutual will involves a binding contract between the parties which becomes irrevocable upon the death of the first testator. Under common law, mutual wills serve to ensure property passed to marital children rather than to potential later spouses and non-marital children in case of remarriage.
Disputes among beneficiaries of mutual wills can become an issue. Let’s say an agreement to write a mutual is part of a property settlement agreement pursuant to a divorce. In this instance, both parties agree that no one but the offspring of their marriage will inherit any of their property. As part of the agreement, each party executes a reciprocal will leaving all their property to the children born of their marriage.
This agreement can create potential issues later. Courts have often questioned whether the testators can be contractually bound by a will that does not allow the option to revise or revoke the document at a later date. This type of agreement is contrary to the basic law of wills and the general principles. By definition, wills contain declarations that can be voluntarily altered, amended, or revoked at any time during the testator’s life.
Joint and mutual types of will arrangements are cumbersome. They should not be entered into without objective advice regarding the ramifications.
In the coming months, be sure to look for my column as we discuss:
- Living wills
- Self proving wills
- Unsolemn wills (executor not named)
- Statutory wills
- Electronic wills