Holographic Will – clearing up some misconceptions

You may have come to the conclusion that writing your Will with a solicitor is too expensive. You have thought that maybe you could write your own Will. But when you google the topic, “writing your own Will” leads you to all kinds of conflicting information. Eventually, you find information about the holographic Will, and have become totally confused.

Please allow us to help.

Background to the misinformation

The main source of confusion is of course the Internet. The problem is that laws pertaining to holographic Wills vary quite dramatically from one country to another. If you post to a law forum, to Quora or to Reddit, the whole World will want to chip in with an answer. The problem is that an answer coming from Canada, or the US, or from India, will not apply to UK law.

Holographic Will

Here’s a great example. A question posted on uk.answers.yahoo

Hand-written Will. Is it Legal?

And we have 9 answers.

The “best answer” provides some interesting guidance:

“First of all, a Will can be legal even if it is not signed.”

This person would have been referring to a holographic Will. But when you read to the bottom of the answer they provide the qualifier that

“This only refers to Wills made under Scottish Law.”

The unfortunate part of the caveat is that this would have been correct up until 1995 (15 years before the answer was posted), but The Requirements of Writing Scotland Act 1995 changed this to align the law with England and Wales.

But the other answers are all muddled. From the US somebody has commented

“It depends on where you live. This is known as a “holographic will” and it’s enforceability in court depends on local laws.”

This is incorrect. A handwritten Will is legal in all jurisdictions. What differs across countries, States and Provinces is the need for witnesses.

In the 9 answers to this question on the Yahoo answer board, there are literally dozens of errors.

Approaches to writing your own Will

There are broadly four approaches to writing a Will. All but the first of these could be described as “writing your own Will”.

1. Contact a solicitor or professional Will writer and have them write your Will

This is the traditional approach to Will writing. You have a good chance of preparing a Will that the courts will accept (although, not a guarantee). But it can be expensive, and isn’t a very convenient process. Not only do you have to make an appointment to prepare the Will, it is also very difficult to update the Will to reflect any changes in circumstance.

2. Use an online Will writing service

An increasing number of people are turning to online Will services. Often they use the same software used by estate planning solicitors, but give you direct access to it. That is certainly our approach at www.legalwills.co.uk. There are a number of advantages to this approach. The final result has the same quality as a solicitor, but it is a fraction of the cost and far more convenient to both create and update the Will.

In addition, some online services have value added features like those at LegalWills.co.uk. An Executor tool called LifeLocker, and the ability to grant Keyholders™ access to key documents and messages at the appropriate time.

3. Use a blank form kit

This has been the traditional approach to writing a Will on a budget. There are a number of blank form will kits available from WHSmiths and Amazon.co.uk, but there are inherent risks. Not only is it easy to make a mistake with these kits, but there is no guarantee that they are up to date, or that they comply with the laws of England and Wales.

Laws do change, and in fact the intestacy laws of England and Wales had an overhaul just last year.

Some online providers of downloadable blank kits even offer them free of charge. The problem with a free kit is that it is almost certainly not of a professional quality, and you will not receive any support if you have any questions.

Free Last Will and Testament

4. Write your own Will using a blank sheet of paper.

The final approach to writing a Will is simply to write your wishes starting with a blank piece of paper. It is perfectly legal to prepare your Will this way, and it is possible that you could prepare a Will that the courts will accept. But the structure of the document will almost certainly be poor.

Wills are usually more complex than simply saying that “I want everything to go to my wife Helen”. A well drafted Will would appoint an Executor, create an alternate plan, potentially set up trusts, and certainly explain the powers being granted to the Executor. All of this is extremely difficult if a Will is written freehand on a piece of paper. Even for a trained legal professional.

The holographic Will

Everybody has a legal right to prepare their own Will. There is absolutely no legal requirement to use the services of a solicitor or a professional Will writer to prepare your Will.

However, not every approach to writing your own Will is a holographic Will. To be holographic the entire document must be written in your own handwriting. A fill-in-the-blanks do-it-yourself Will kit is not a holographic Will.

If you type the Will and then handwrite specific entries in the spaces. Like the name of your Executor, or the list of beneficiaries, then this is not a holographic Will.

Witnesses or not?

The key distinguishing characteristic of a holographic Will is that in some jurisdictions, they do not require witnesses. The precise reasons for this aren’t clear. One argument would be that if you have written the entire document yourself, then you clearly understood what you were writing, and a witnessing of the signing process doesn’t add much. But this doesn’t address the witnesses role of protecting against undue influence and being put under pressure to write something that didn’t reflect your true wishes.

The second argument is that you would usually write a holographic Will under such dire circumstances, that witnesses are probably not available. We are referring to being stuck under a rock, or as in the case of a farmer in Canada, pinned under his tractor. In these situations, you are still able to prepare your Will, and you don’t need witnesses to provide the extra assurance that there was no untoward influence in the signing process.

But the shortcomings of a unwitnessed Will have led to many jurisdictions changing the laws and they now require that even handwritten Wills have witnesses to the signing. (We are setting aside for now “privileged” and “nuncupative” Wills. Those that are written in extreme circumstances by active military service men and women)

In Canada and the US there is a selection of Provinces and States that accept handwritten, unwitnessed Wills. Scotland did up until 1995, but now require witnesses. Under the probate laws of England and Wales, handwritten Wills must still be witnessed by two adults who are not beneficiaries in the Will.

Legality of a Holographic Will in the UK

If you are researching the topic, and stumble across a site like this one ehow.co.uk that explains the legality of holographic Wills, be very, very careful. This is a UK ehow site, but the answer talks about paying dollars for lawyers. This is a giveaway that the answer may not be applying to UK law.

In the UK you can handwrite your own Will. You can also legally use a blank form based Will kit. It is perfectly legal to take this approach to preparing your own Will. But to make your document a legal Last Will and Testament, you must sign it, and then have two adult witnesses who are not beneficiaries also sign the Will.

You would gather your two witnesses in a room and the three of you would all sign the document in turn.

Holographic, handwritten Wills are legal in the UK. But the signing must be witnessed by two adults who have nothing to gain from the contents of the Will.

Under what circumstances would it make sense to write a holographic Will?

The only time it would ever be a good idea to prepare a holographic Will is if you did not already have a Will that reflects your wishes, you were facing imminent death, and you had no facilities available to prepare a proper Will. We are talking 127 hours here. You are stuck under a rock and there’s a chance that nobody will find you.

Why it makes no sense to make a holographic Will

It is actually incredible difficult to prepare a well drafted last Will and Testament. The Will service at LegalWills.co.uk creates a Will that is usually word-for-word identical to one prepared by a solicitor. We use the same software used by solicitors across the UK, but we give you direct access to it.

Nobody writes a Will starting with a blank sheet of paper. It would be a difficult test in a final year law exam, and it is certainly beyond the capabilities of somebody with no legal training.

Even a simple Will written using our service is about 5 pages long and includes at least a dozen clauses that explains the Trustee and Executor powers and responsibilities.

Most importantly, our service guides you through the handling of alternate scenarios. This means that no matter what happens, you have a plan for the distribution of your estate. For example, if your first choice beneficiary is in an accident at the same time as yourself, or pre-deceases you. You must still have a distribution plan.

Mistakes in handwritten Wills

There are dozens of other common mistakes you can make if you handwrite your Will. The service at LegalWills.co.uk steers you away from these serious errors.

Many handwritten Wills include conditional bequests. For example, “I leave £10,000 to my son Eric, as long as he goes to University”. The problem with this type of bequest is that it doesn’t say when Eric has to go to university. The bequest therefore sits in trust, waiting for distribution, only when it’s clear that Eric isn’t going to University. But there’s nothing stopping him enrolling for classes when he’s 75 years old.

Another very common error is the temptation to list all of your assets in your Will. There are two issues with this; firstly, when you die, your Will is a public document. Anybody can request to view it and read it. You may not want everybody to read about the extent of your assets. Secondly, you don’t know when your Will is going to come into effect. It could be next week, it could be decades from now. If you list your assets in your Will, you would have to update your Will every time you bought or sold something.

The online Will service

The best approach to writing your Will is an online Will service. You are able to produce the same document that an estate planning solicitor or professional Will writer would prepare. But from the comfort of our own home for a fraction of the cost.

Online Will services guide you through the process, checking for errors along the way. You can certainly write your own Will, but it doesn’t have to be a handwritten or holographic Will. Take a look at the service at www.legalwills.co.uk and write your own Will today.

One thought on “Holographic Will – clearing up some misconceptions

  1. LJ LJ says:

    Hello,
    What is the easiest way to leave a property to someone, without having to deal with all the other possessions you own, and without needing an executor? Like a will exclusively for one property, separate from all other possessions which could be left in a main will.

Leave a Reply

Your email address will not be published. Required fields are marked *