COVID-19 and Holographic Wills: A Backstop if You Can’t Get to a Lawyer

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[Note: The COVID-19 pandemic is raising some difficult legal agency, care and testamentary issues. While the following is not legal advice, it is merely offered to raise a potential issue that – in the opinion of the author – may likely not have been contemplated at the time such agency and testamentary documents were drafted, or that have not been executed. Such notes are merely exhortations to consult with your attorney if you are having concerns about how your executed estate plan and agency documents hold up in this unanticipated time]

The COVID-19 pandemic and our societal response has likely caused a number of us to contemplate our mortality and whether we are adequately prepared for it. One common preparation for end-of-life is the execution of an estate plan to dispose of your property to intended recipients. While plans for the disposition of your property and settlement of your affairs at your death should always take careful consideration, many people may not have the opportunity during the Covid-19 pandemic and associated social distancing to work with an attorney for such drafting [note that attorneys offices may remain open under the Governor’s stay at home order, see below].

If you are feeling anxious about not having a will, or concerned about an old will that does not satisfy your current property disposition wishes, and find that you cannot meet with an attorney, you can create a legal backstop in the form of a handwritten will, known as a holographic will. If anything, it may suffice to temporarily relieve anxiety about getting caught off guard by this pandemic.

While there are online templates of agency and testamentary documents are available from various sources, you may draft a legal will by your own hand in extreme circumstances. Holographic wills may be admitted to probate for effective disposition of your assets provided certain criteria is met. North Carolina General Statute § 31-3.4 specifically authorizes holographic wills with the following requirements:

(1)        Written entirely in the handwriting of the testator but when all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator, and not affecting the meaning of the words in such handwriting, shall not affect the validity of the will, and

(2)        Subscribed by the testator, or with the testator’s name written in or on the will in the testator’s own handwriting, and

(3)        Found after the testator’s death among the testator’s valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.

In short, the holographic will must be written out by hand – not typed – in the testator’s own hand and signed (subscribed) by the testator, then placed in a file cabinet or desk drawer. Item 1) suggests that if a will were scribbled out on a page that has other type-written words, this is not fatal to the validity so long as those words do not relate to the dispositive handwritten language. (Indeed, the author has seen a holographic will codicil (see below) written on the back of a grain warehouse ticket!).

Here are several tips:

  1. Use the same color of ink for the whole document (Do not write in pencil!) and write legibly.
  2. Keep the will short and limited to the front and back of a single page. Remember, it is intended as a temporary backstop.
  3. Write out your full legal name, and sign as you have written your name.
  4. Identify the relationship to you of any specific people named in the will.
  5. Identify the person who will submit the document to probate (in the event you pass) (this person should be identified as your “personal representative” or “executor” (male or female).
  6. If you are married and you wish all of your property – including that acquired before you were married or that which you have received by inheritance – go to your spouse, simply say so. Identify who you intend to inherit the property if your spouse pre-deceases you.
  7. If you have property you wish to go to specific individuals (i.e. not your spouse), express this clearly.
  8. Anticipate that an individual or member of a class of individuals may predecease you (e.g. a child), and direct who will receive such property in that event. If you simply note, “I want my real property to go to my children, per stirpes,” this means that if any of your children predeceases you, their children (i.e. your grandchildren by that child), will inherit their interest.
  9. Try as best you can to make your intent clear, and do not hesitate to use plain language (don’t worry about legalese!). If someone is to challenge the validity of this document or its dispositions of property, the presiding judge will only have the language of your handwriting to go from.
  10. Do not have any family member write on the document or write for you. If you are in the presence of one or two individuals who might otherwise qualify as witnesses (i.e. not lineal descendants, lateral family members, or people you owe money to), it is probably best to resist the urge to have them write their names to the document as witnesses. This does not add to the validity of the document, and – depending on a fact unknown to you about the witness – provide an opening for a challenge.
  11. Put the written document in a desk drawer or filing cabinet in a folder marked “my will.” If you have a safe, place it there.

Holographic instruments can also be used to modify existing wills as codicils. However, this is a bit more tricky, in that the handwritten codicil – to be valid – may not rely on any reference to the original document (i.e. depend on language in the original document to clarify anything in the handwritten document).[1]  In other words, while the codicil may change the original will (i.e. direct a item of property to a different individual than the original will), it must stand on its own and dispositions of property or other instructions may be read only from the handwritten document. For example, a handwritten codicil that says “The farm that was to go to my son in my original will now goes to my daughter” will likely prove ineffective. If you are updating a very old will, naming predeceased executors or heirs, it may be best to destroy that document and write a new one in your own hand. Again, if writing a holographic will appears as your only option to update your wishes on property dispositions.

Again, if you are able to get a meeting with an attorney and get a will executed, make that your first option.

[Note:  Attorneys are considered essential businesses during Governor Cooper’s ‘stay at home’ order, but interaction by phone and email is encouraged. It is certainly possible – and preferable – to have an attorney draft a document and email it to you for your review and execution, but your challenge may be finding two disinterested witnesses and a notary during the shutdown. Though banks routinely provide this service for customers, please check with your bank about their status during this time.]

While holographic wills are not ideal over the long term, at the very least one can make clear dispositions of property in order to avoid their passing to unintended individuals under North Carolina’s Intestate Succession Act. Once crisis has passed, consider the need to meet with an attorney and have a will drawn up and executed as a self-proving will under North Carolina law. But in the moment, “executing” such a document may relieve anxiety about not having put your affairs in order, because by this act you legally have done so in North Carolina.

[1] See In Re Will Goodman, 229 N.C. 444, 446 (1948)