Even before the paucity of in-office lawyers during 2020 and 2023 owing to Covid, it was challenging to serve many senior citizens located in nursing homes or otherwise isolated. It can be difficult to gather witnesses, paralegals and even visiting attorneys to prepare even a simple Will.
Consequently, many elderly individuals were forced to use "do it yourself" handwritten wills. The Probate Court was then left to interpret the Testator’s acts regarding the issues of enforceability, intentions, and documents.
The discovery by a third party of a Holographic Will after the death of a decedent can result in a legal quagmire over its authenticity, Testator intent and the interpretation of the handwritten instrument. The Personal Representatives of Decedents who have been alone or estranged from their families, can find themselves in possession of a Holographic Will and may expect disputes over the document from relatives, caregivers, and even relative strangers. Therefore, a careful and well-planned case must be mounted. It is up to the attorney, working with clients, to uncover evidence that will allow the denominated Person Representative to prevail.
As set forth above, Hawaii law provides that handwritten wills that are not witnessed can still be valid and offered for probate if the signature and material portions of the will are in the testator's handwriting. The requirement of authenticity is typically proven by someone who is familiar with the maker's handwriting. Alternatively, the handwriting may be identified by a handwriting expert using near contemporaneous samples of the maker's handwriting as contained in letters, checks, other written documents, or instruments in the maker’s own writing and performing a signature comparison of same
Typically, in a Holographic Will dispute, the main point of contention is whether the document contains evidence of the Testator’s requisite
testamentary intent
to make the will. The question before the court is whether the material portions of the will contain sufficient language expressing the intent of the maker of the will and that the instrument is sufficient evidence of the Testator’s irrevocable intention to leave or dispose of the property according to the Holographic Will found at the maker's death.
Courts and judges across the country that admit Holographic Wills interpreting Hawaii's expansive law on the subject have universally held that there need not be any formal legal language to establish testamentary intent. Phrases like "should anything happen to me” or when I leave" constitute the required demonstration of testamentary intent. Even words or phrases in a document describing the instrument as someone's last will and testament can be enough to satisfy testamentary intent.
However, vague references to making a will in the future such as "I intend to change my will and leave my property to X" have been held insufficient as well as merely making a promise to make a will at a later date. Alternatively, the phrase "I want you to have it all" is considered a valid will with requisite testamentary intent when signed.
The interesting and developing part of the law with respect to handwritten wills is whether the will even has to be signed or dated at all. In 1996, Hawaii joined just five other states -- Connecticut, Hawaii, South Carolina, Washington, and Wisconsin -- in the United States along with the countries of Australia, Israel, and Canada in enacting Hawaii's version of the “Harmless Error Rule” regarding wills that is now codified in HRS §560:2-503. The Statute states:
