Author: Brenton McWilliams
A handwritten last will and testament created in Alabama is not automatically invalid, but the will must meet the same requirements of any other will. Alabama does not relax the attestation, witness and other statutory requirements and signing formalities for handwritten wills. In other words a handwritten last will and testament created in Alabama, when it comes to the statutory execution requirements, is not treated differently than any other type of will.
What Is a Holographic Will?
A holographic will is a last will and testament that is handwritten and signed by the individual creating the will (also referred to as the testator). The unique aspect of a holographic will is that it is handwritten by the testator rather than printed, typewritten or handwritten by someone other than the testator. In some states, the formal requirements are relaxed for holographic wills and a handwritten will may be valid to be admitted to probate even though the will lacks the attestation and witness requirements that would apply to a non-handwritten will.
Are Handwritten Wills Valid in Alabama?
A handwritten last will and testament created in Alabama is not automatically invalid, but the will must meet the same requirements of any other will. Alabama does not relax the attestation, witness and other statutory requirements and signing formalities for handwritten wills. In other words a holographic last will and testament created in Alabama, when it comes to the statutory execution requirements, is not treated differently than any other type of will.
Can I Make Handwritten Changes to My Alabama Will?
You can change or revoke your Alabama last will and testament at any time. Changes or amendments to a will require the same attestation and witness requirements as the creation of the will. Striking portions of a will or making other handwritten changes to a will after creation and signing of the will, absent a new signing, will typically be invalid. Creation of a codicil, an amendment to an existing will, or completely redrafting and signing a new will are the preferred methods to make changes to a will.
Can I Revoke My Will?
To revoke a will in Alabama, the Alabama Code provides that:
“(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses.”
Alabama Code 43-8-136.
The preferred method to revoke a will is by creating a new will stating that the previous will is revoked.
A divorce or annulment of a marriage may revoke portions of a will by operation of law:
“If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse within the meaning of section 43-8-252(b). A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.”
Alabama Code 43-8-137
What Happens if I Die Without a Will?
In Alabama, if you create a handwritten will that is invalid for probate, then you have no last will and testament. If you die without a last will and testament in Alabama, your probate assets located in Alabama will be distributed heirs to that are determined according to Alabama’s law of intestacy.
Alabama’s intestate statute has an order of priority of family members who inherit which, in my experience, does not follow what most people want. Take for example a person who is on their second marriage and has children from a prior marriage. Without taking into account exemptions and allowances, half of that person’s probate estate would go to the person’s spouse and the other half of the probate estate (which could include the house that the spouse lives in) would be divided among the person’s children. In experience most people would prefer that their probate estate be left to their spouse.
Alabama’s intestate statute starts with the deceased individual’s spouse and children. If the deceased individual does not have a spouse and children, then the list of default heirs continues branching through the family tree going up to the deceased individual’s parents, then to siblings, nieces and nephews, grandparents, aunts, uncles, and cousins. In the unlikely event that there are no living relatives among the list provided by the statute, the final beneficiary is the State of Alabama through an escheat of the probate assets to the state.
The Policy Behind Relieving the Statutory Formalities of Handwritten Wills
In some jurisdictions (other than Alabama), the formal signing and attestation requirements applied to wills is relaxed for holographic or handwritten wills. The policy rationale for these laws is that it is somewhat difficult to forge another person’s handwriting and signature and, also, that authorizing a holographic will provides a means for a person to who is unable or unwilling to seek legal help to make a will in that person’s own handwriting.
However, holographic wills have also been criticized as sources of litigation. Because holographic wills are typically made without the assistance of an attorney, problems often arise when the will is submitted for probate due to the lack of legal knowledge or access to professional advice on the part of the drafter. Additionally, the lack of witnesses involved in the signing of a holographic will create a scenario more conducive to duress and coercion in the drafting and signing of the will.
Interesting Cases Involving Holographic Wills
The circumstances surrounding holographic wills created close in time to a person’s death have made for some of the more interesting legal cases and lore.
I recall one of the demonstrative cases we read in law school involved a farmer in Saskatchewan, Canada. The farmer became trapped under a wheel of his tractor with no one around to help him. While pinned under the wheel, he carved his last wishes into the fender of the tractor. His scratches read simply “’In case I die in this mess I leave all to the wife.’ Cecil Geo. Harris” Harris was rescued after, by Harris’s own estimate, being trapped for 12 hours. However, he died the next day almost 36 hours after his rescue.
An attorney moved to admit the tractor fender as Harris’s last will and testament. Although certainly an unconventional medium for a will, the tractor fender was admitted to probate as Harris’s last will and testament. However, there were other issues which highlight one of the problems attendant with holographic wills. Harris began the writing (his will) with “In case I die in this mess…” Probably unexpected by him at the time, he actually lived to be rescued but died later. Therefore, there is a question of Harris’s intention. Did he intend the will to only be effective if he died “in this mess” while pinned under the tractor? The issue was not reached, but it highlights the problems that seemingly innocuous and extraneous language can create.
The son of the attorney in the Harris case noted that at the time of the Harris case, he was only able to find one other similar reported case, Hodson v. Barnes. The Hodson case involved a will written on an eggshell by a boat captain. The eggshell will of the Hodson case was not accepted for probate. However, the reason for the denial of the eggshell will was unrelated to the unconventional surface of the writing of the will.
The Guiness Book of World Records has a listing for the shortest will. The shortest will was written in Czech by Herr Karl Tausch of Langen of Hessen, West Germany. On a wall of his bedroom he wrote Vše ženě, which is translated to “everything to wife.”