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By David Inabinett, Attorney

Clients often ask, “Is it ‘legal’ to write up my own will” or “can I just write in changes to my will?” While a handwritten Will is recognized as “legal” in North Carolina, a June 2017 case decided by the NC Court of Appeals illustrates why that may not be such a good idea.

The Matter of the Will of James Paul Allen

In The Matter of the Will of James Paul Allen, Mr. Allen had a valid typewritten signed and properly attested will leaving in Article IV a life estate or “lifetime rights” in certain lands to an individual with full ownership in those lands passing to two other people upon the later death of the person given the lifetime right. However, Mr. Allen apparently wrote in the margins of that Will his own handwritten notes saying, “Beginning 7-7-03 do not honor Article IV Void Article IV James Paul Allen.” A dispute arose as to whether there was any legal effect of those handwritten notes since those effectively omitted the life estate and gave all of the land fully to the individual who had previously only been given a lifetime right.

The Rules for Handwritten Wills

A hand written or “holographic” will must be:

  1. Written entirely in the handwriting of the deceased but when all the words appearing on the paper in the handwriting of the deceased are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the deceased, and not affecting the meaning of the words in such handwriting, shall not affect the validity of the will;
  2. Subscribed (signed) by the deceased;
  3. Found after the deceased’s death among the deceased’s valuable papers or effects…

So the court agreed that handwritten notes in the margin of a typewritten will CAN be upheld as a valid holographic will or a codicil (amendment) to that will. However, our courts have established certain requirements for a valid holographic codicil to a typewritten will. A 1948 case known as In Re Will of Goodman specifically provides that “where words NOT in the handwriting of the deceased are essential to give meaning to the words used, the instrument will NOT be upheld as a holographic will.” Goodman goes on to say that where the meaning or effect of holographic notes on a will requires specific reference to another part of the will, the holographic notations are not a valid holographic codicil to the will. Therefore, if there are words not in the handwriting of the deceased which are essential to give meaning to the words that the deceased used, then the handwritten notes will fail to meet the requirements of a valid handwritten codicil.

Lastly, a codicil, whether typewritten or handwritten, must establish a present intention of the deceased, not merely a plan for a possible future alteration or amendment to the will. The notation of Mr. Allen’s purported codicil says, “Beginning 7-7-03 to not honor Article IV Void Article IV James Paul Allen.” The deceased signed the will on August 29, 2002, and it is not clear if he wrote the notation on July 3, 2003, or on some earlier date in which case it would have been an expression of an intent to make a future change to his will. Next, in order to understand Mr. Allen’s notes, it is necessary to incorporate or refer to the remaining contents of Article IV to which his notes refer. Therefore, if words which are not in the handwriting of the deceased are essential to give meaning to the words he used, it cannot be a valid handwritten codicil to the will.

These points illustrate the pitfalls of simply using one’s “common sense” to try and write out one’s intentions regarding their last will and testament without seeking the guidance of an experienced estate planning attorney. What is clear in our mind when we write down notes to ourselves is often unclear even when we ourselves re-read them some days or months later, much less for those who are left behind after our death to interpret our cryptic notes as to what we intended to occur with our money or property in our will. A fairly simple – and relatively inexpensive – typewritten codicil or a new will would have avoided what turned into years of litigation with a trip to the court of appeals.