What’s a holographic will?
A holographic will is one which is entirely handwritten by the Testator and signed by him (or her). In many ways, whether a will is handwritten or not makes no difference in England and Wales, because it must still be properly signed and witnessed in order to be valid. However, holographic wills can give rise to issues of validity and can cause problems with interpretation.
Do special rules apply to holographic wills?
In some jurisdictions, holographic wills do not need to be witnessed. The thinking behind this is that there is less chance that a will is a forgery if it has been entirely written by the Testator and signed by him. On the other hand, just because a will is holographic does not mean it won’t have been written as the result of the undue influence of someone else. Not only do holographic wills not always need to be witnessed to be valid, in some jurisdictions, a holographic will no longer needs to be entirely handwritten. Although some element of the will needs to be handwritten, other parts of it do not have to be.
At present, in England and Wales, no special rules apply to holographic wills. The normal rules contained in section 9 of the Wills Act apply to holographic wills as they do for any other document stated to be a will. This means that in England and Wales, a holographic will must be signed and witnessed like any other will. The same rules relating to will disputes and claims under the Inheritance Act also apply to a holographic will.
What are the problems with holographic wills?
Provided a holographic will is clear in its intentions, and is signed and witnessed in accordance with the Wills Act, it presents no more problem than any other type of will. However, issues often arise because the testator has not taken legal advice about how to set out his will, has failed to complete the formalities that are normally required for a will, or has poor written English which makes the content of the will confusing.
The recent case of Vucicevic demonstrated how a holographic will could cause difficulties, even without any real dispute about the contents of a will.
Holographic wills in the future
The recently closed Law Commission consultation on will reform looks at the question of will reform and considers whether holographic wills should be given a separate classification. Its preferred position is that holographic wills should not be treated any differently to a will that has been typed or is part handwritten, part typed, or handwritten by someone else – they should still be signed by the Testator and witnessed. Alongside the Law Commission’s concerns about holographic wills being open to forgery and undue influence, increasing will disputes, it would mean that there would be 2 possible ways of making a valid will. A traditional route, signed by the testator and witnessed, and the holographic route which would open the possibility for a will to be unwitnessed if it was entirely written in the testator’s own handwriting and signed by him.
Holographic Will and Will Disputes
In principle, there should be no difference in a will dispute between a holographic will and one that has been typed, or completed using an ‘off the shelf’ will writing kit where the testator fills in the blanks. However, in a scenario where the contents of a will are disputed, a holographic will might lead to even more heated challenges particularly if there are questions of undue influence.
If you have any questions about a will that you are concerned about, whether it’s a holographic will or not, get in touch. We are a specialist will dispute firm of solicitors, and will be happy to review your case for free and advise you on the next steps.