Are There Hidden Dangers to a Holographic Will?

Posted by Martin Heller Potempa & Sheppard, PLLC on November 9, 2018

There’s a chance you might not even understand what constitutes a holographic will.  Quite simply, it is a handwritten document written with the intent of passing on assets after death. Although not all states consider them legal,  Tennessee law does recognize holographic wills.

No doubt the decision to handwrite a will is most often done without consulting legal advice. There are all types of intricacies in estate planning law that are seldom addressed in holographic wills. Nonetheless, the requirements for probating a holographic will are actually quite basic. The will must be entirely in the decedent’s own handwriting, and two witnesses must be able to attest that the signature belongs to the deceased.

When does this become a problem? Say someone decides to pull a form from the internet and just fill in some blanks. Although portions of the document will be handwritten and the signature verifiable, it will not meet the statutory requirements for a holographic will.  Again, all of the text must be handwritten.

Meanwhile, ambiguity often represents one of the biggest hidden dangers in holographic wills. The failure to put in someone in charge of the estate – or to make specific bequests can often represent a nightmare.

Earlier this year, the court considered a case involving a holographic will. You may find it of interest – and better understand the need for meeting with an attorney regarding estate planning.

What Happened with this Holographic Will?

In Re Estate of Peery was decided by the Tennessee Court of Appeals on June 21, 2018.  The case deals with the purported holographic will of Andrew Thomas Peery, Jr., identified as “Tom.”  After Tom died on January 17, 2016, his brother, John Wayne Peery attempted to probate what he said was Tom’s handwritten will. Martha Peery, the decedent’s widow objected and the matter was brought to court.

The handwritten document offered by John was written in 1992 and is short and basic. The entirety of it appears in the court opinion as follows:

Nov. 13, 1992

After my death I A.T. (Tom) Perry, Jr. give to Wayne Peery or his son John Peery an option too (sic) buy my share of the Farm located in the 12 District of Blount County for the Price of one dollar. The reason I have done this, he has never charged me any rent on his share of the Farm and has helped me in other ways. So I feel he should have my share of the Place.

/s/ A.T. (Tom) Peery. Jr.

Martha challenged the document for a few reasons. First, she was sure that her husband died without a will. The couple discussed the need for one but essentially procrastinated. The first time she even learned of the handwritten will was after her late husband’s death.

Widow Discovered Documents

Martha cited other concerns – including an inadequate description of the subject property. The document seemed to only deal with one property, when Tom owned other assets.

During the court proceedings, Martha provided two handwritten documents she found in an old horse trailer. They were not in the place where Tom traditionally kept his important documents. Both were dated January 1, 1997, and contained the following language: “I hereby make and Declare this as and for my last will and testament.”

Notably, both writings were different but demonstrate that Tom knew how to write a holographic will. Additionally, Martha is named as the executrix and there is far more information regarding division of the decedent’s property.  There is also a reference to property left to Wayne Peery or John Peery. The word “Void” is written in multiple places, including on the face of the documents. No attempt was made to probate either version of the papers Martha found.

At the trial court level, the judge decided that Tom did not intend for the 1992 note produced by his brother to act as his Last Will and Testament. Although John appealed, the Appeals Court agreed with the lower court’s ruling.  As far as the law was concerned, Tom died without a will and his estate was to be divided accordingly.

Contact Us

At Martin Heller Potempa & Sheppard, PLLC, we are here to help you with your estate planning needs. Contact us to schedule an appointment.

arrow-up