By Abigail Neal, Arizona Wills Lawyer
Question: Is a handwritten Will valid?
Under Arizona law, some Wills may be valid if they are handwritten. See A.R.S. § 14-2503. A handwritten Will is also called a “holographic” Will. A holographic Will is valid under the following circumstances:
1. The material provisions must be in the deceased person’s handwriting. The material provisions include the names of the persons to inherit property and what property they should inherit.
2. It is clear from the document that the deceased person intended to create a document that disposed of their property after death. This provision can be, but is not required to be in the deceased person’s handwriting.
3. The deceased person signed the document.
Are Handwritten Wills a Good Idea?
It’s better than nothing, but a handwritten Will may be much more susceptible to being challenged. Common challenges include:
Capacity: One common challenge made to handwritten Wills is that the person making the Will did not have the required capacity to make a Will, thus the Will should be deemed invalid. In order to have the capacity to make a Will, Arizona requires that the person making the Will is:
- Age 18 or older;
- Able to understand what they own;
- Able to understand who their natural heirs would be; and
- Able to understand what they were doing by making a Will (disposing of assets after death)
Undue Influence: Another common challenge to handwritten Wills is undue influence. People often argue that one person (often the person benefiting from the Will) improperly influenced the deceased person to make a Will that gave the influencing person their property. We’ve seen this one come up many times when a parent leaves their child who cared for them the bulk of their estate. The other children get angry and accuse the child that cared for the parent of improperly influencing the parent to leave the them most of their estate.
Mistake: This often happens when one party believes that the deceased person made a mistake when they wrote their Will. This happens more than you would think with handwritten Wills.
Fraud: Although there are a number of ways to attack a Will for being fraudulent, a common issue with handwritten Will is that the Will was forged.
If a Will gets challenged under one of these (or other) theories, both sides will have to work to prove that either the deceased person did or did not have capacity to make the Will.
Why Is An Attorney Prepared Will Better?
An attorney prepared Will has a number of benefits over a handwritten Will:
1. The person has a discussion with their attorney about exactly what they want to happen. When an attorney prepares a Will, the client can have assurance that what they want to happen will happen. This also substantially lowers the possibility of mistakes or having a Will challenged under the theory that the deceased person made a mistake. In addition, an attorney should be able to tell if a person lacks the capacity to make a Will before the Will is even created.
2. When an attorney prepares a Will, they often will host the “signing conference” with the client. During the signing conference, the attorney will have the client sign the Will in the presence of two witnesses and a notary. (This is required under Arizona law for non-handwritten Wills.) Having the client, two witnesses and a notary sign the Will are called the “formalities of execution.” Following these formalities serves a number of important functions:
- The witnesses and the notary all see the person sign the Will so they could be able to testify if necessary that the person appeared to have the requisite capacity to make a Will and that there was no undue influence.
- If a Will is witnessed by two persons and notarized, and both witnesses and the notary sign an affidavit stating that all of the requirements to create a valid Will have been met, the Will is considered “self-proved” under Arizona law. This means that the formalities of execution are conclusively presumed and the witnesses should not be required to testify and state that the formalities were met. If the Will is challenged, this also puts the burden of proof on the challengers to show why the Will should be deemed invalid.
- It is a lot more difficult to claim a Will was forged when three people saw the person making the Will sign the Will!
At Powers & Neal, we know you want to do it right but also must be mindful of your budget. Learn more about our Will-based estate plan. When you are ready, call us at (480) 699-7992 to get started. Also, feel free to give us a call if you have any questions. We don’t charge for answers to quick questions.