Wills & Estates Newsletter

Holographic Wills & Will Validity

There is much debate about the acceptability of a Holographic Will. In Australia, when such Wills come into play, it is up to the Court to decide on their legitimacy.

A Holographic Will refers to a handwritten Will in the handwriting of the person who is making the Will, signed and dated in that person’s own handwriting. It is often created without a witness.

Several countries, including France, Canada and the USA have made provisions in their legislation to accept such Wills. In some countries, this type of Will is considered to offer evidence of authenticity. This is due to the fact that the handwriting can be checked and matched against other documents, and so 'prove' genuineness.

One of the arguments against this type of will is that it is open to forgery. It is also difficult to tell if the person was unduly influenced or if they were coerced.

However, there is much debate about whether Holographic Wills provide legitimate verification of the Will maker’s intention. Argument against this type of document includes that they are often chatty or conversational in style and lack the deliberate ritual of an attested will. Therefore, it can be debated that the person was just making notes or jotting down thoughts, rather than clearly formulating their intentions. The informality suggests that a case can be made that it is just a draft will. Conflicting interpretations of the handwriting can also present as an issue.

The arguments for the acceptance of Holographic Wills point to their simplicity, their low cost and the informality of organising them, the only stipulations being that they are totally written, signed and dated in the person's own handwriting.

Some people in favour of the Holographic Will state that it is actually easier to prove authenticity of a hand-written Will than a printed document, as it can be compared with other writing from the deceased person and experts can be consulted. Of course, this introduces other elements into the process of settling a Will and could be costly.

Holographic Wills could make the process of leaving a Will simpler for those in remote areas, those that are bed-ridden or extremely ill, and those who cannot afford a solicitor.

The debate about Holographic Wills opens a wider debate about what actually constitutes a Will.

The main requirements for constructing a valid Will are:

• It must be in writing
• It must be signed by the testator (the person making the Will)
• The testator’s signature must be signed by two witnesses
• The witnesses must sign in the presence of the person making the Will.

As Wills are so often disputed and the formal requirements of making a Will are strict, it is advisable to seek legal advice from a professional solicitor.

To read more about this debate in NSW, visit Lawlink NSW.

Archive

Wills: Make an Executive Decision - Appoint an Executor

DIY will kits: will they hold up?

Organise Organ Donation

Bankrupt Estates

My co-executor is bullying me!

What you need to know to make a Will

The Guardianship Tribunal

Missing Wills and Court Proceedures

Do I Need a Power of Attorney?

Should I Appoint an Enduring Guardian?

"But he's not capable of Making a Will!"

Back to Newsroom