Thursday, October 15, 2020

Can I Write My Own Will? Should I?

Overview

Statistics show that most people do not have a will in place to dispose of their property upon death.  In that event the state where a person is domiciled has a set of rules that will specify who gets the decedent’s property.  If a taker can’t be found under those rules, the state will receive the property. 

Some people don’t get around to executing a will during life.  The reasons for not doing so vary – from not wanting to hire a lawyer; to simply not getting it done.  Other’s may try to write their own will?  Can that be done?  If so, is it a good idea?

Writing one’s own will – it’s the topic of today’s post.

Legal Requirements for a Valid Will

Every state has statutory requirements that a will must satisfy in order to be recognized as valid in that particular jurisdiction.  For example, in all jurisdictions, a person making a will (known as a “testator”) must be of sound mind, generally must know the extent and nature of his or her property, must know who would be the natural recipients of the assets, must know who his or her relatives are, and must know who is to receive the property passing under the will.  A testator lacking these traits does not have testamentary capacity and is not competent to make a will.  Such persons are more susceptible to being influenced by family members and others desirous of increasing their share of the estate of the decedent-to-be. 

Cases involving challenges to wills are common where the testator is borderline competent or is susceptible to influence by others.  However, the fact that the testator was old or in poor health does not, absent other evidence, give rise to a presumption that the testator lacked testamentary capacity or was subject to undue influence.  See, e.g., Lasen v. Anderson, et al., 187 P.3d 857 (Wyo. 2008); In re Estate of Hedke, 278 Neb. 727 (2009)A person that challenges a will on undue influence and lack of testamentary capacity grounds must establish undue influence by clear and convincing proof and that the decedent possessed testamentary capacity despite being unable to comprehend the purchasing power of her estate.  See, e.g., In re Estate of Bennett, 19 Kan. App. 2d 154, 865 P.2d 1062 (1993). 

Generally, a person making a will must be of “full age.” However, in some states persons not yet of the age of majority who are or have been married can execute a will as if they are of full age.

In addition, the will must be in writing and signed at the end by the testator or by someone else in the presence and at the direction of the testator.  In most states, the will must be witnessed by at least two competent and disinterested witnesses who saw the testator sign the will or heard the testator acknowledge it.  A devise or bequest of property in a will to a subscribing witness is void, with narrow exceptions in the law. 

Handwritten Will

In some states, holographic wills (wills that are in the testator’s handwriting but not witnessed) are not admissible.  Other states treat as valid a handwritten will if it meets certain statutory requirements such as being left with the decedent’s other valuable papers or with another person for safekeeping.  See, e.g., In re Church, 466 S.E.2d 297 (N.C. App. 1996).   In Nebraska, for example, a handwritten will is valid if it is signed and dated (in some manner).  The signature can be the testator’s initials.  In re Estate of Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998).  The date can consist of only the month and year.  In re Estate of Wells, 243 Neb. 152, 497 N.W.2d 683 (1993)

Recent Case

In In re Estate of Blikre, 934 N.W.2d 867 (N.D. Sup. Ct. 2019), the decedent’s will devised her estate to her sister, the plaintiff’s wife. The estate consisted of real property and mineral rights. The plaintiff’s wife was originally named the representative of the decedent’s estate, but she died soon after the decedent died. The plaintiff petitioned for appointment as successor personal representative, as did the defendant, who was the decedent’s other sister who had been excluded from the will. Upon the decedent’s death, the plaintiff sought formal probate of the will by attaching a copy of the will to the petition. The defendant argued that the decedent’s will should be considered revoked because the original was missing.

The trial court ordered formal probate of the will, finding that there was insufficient evidence to show the decedent intended to revoke her will. The defendant appealed, arguing that the decedent had a handwritten will that should be formally probated. The defendant claimed the handwritten will revoked the original will and distributed the decedent’s estate to the defendant and her nieces. The appellate court remanded to the trial court to decide this issue. The trial court held that the decedent’s handwritten documents did not express her testamentary intent to distribute her estate and did not revoke her original will.

On appeal, the defendant argued the decedent’s will was invalid because it was not executed in front of two witnesses, and that even if the will were valid, it was replaced by the handwritten will. The appellate court held that the lawyer who notarized the will gave credible evidence that the two witnesses who signed the original will were physically present when it was executed. Further, the appellate court held that although the handwritten documents were written by the decedent, the documents did not amount to a valid handwritten will under North Dakota law. For a handwritten will to be valid, it must express donative and testamentary intent. The appellate court held that the handwritten documents did not clearly express donative intent, but merely listed desires and concerns the decedent had. As for the missing original will, the appellate court noted that the defendant was the only person who accessed a security box that the decedent kept important documents in upon the decedent’s death. Additionally, before the decedent had died, she told the plaintiff to convey mineral deeds to both the plaintiff’s wife and the defendant. At that time, the decedent did not indicate that she had revoked her will. The appellate court determined the combination of the plaintiff’s testimony and defendant’s untrustworthy testimony was able to overcome the presumption that the decedent had revoked the will. 

Conclusion

While an individual may write their own will, it is usually advisable to have an attorney prepare the will.  One reason is because words can mean different things in different contexts.  For example, in Cameron, et. al. v. Bissette, et al., 661 S.E.2d 32 (N.C. 2008), the decedent’s holographic will was ruled void for vagueness because the decedent left “this Land” to certain beneficiaries, but with no explanation of what “this Land” referred to.   In situations where uncertainty is present because of the words used, a court will try to determine the testator’s intent in light of the testator’s lack of skill in will drafting.  See, e.g., In re Estate of Matthews, 13 Neb. App. 812, 702 N.W.2d 821 (2005).

So, to answer the question of whether you can write your own will, the answer is that you can.  Perhaps the better question is whether you should.  That answer is less clear.  But, if you have a farm or ranch or other small business or otherwise have substantial assets, writing your own will is probably not the best idea. Definitely not.

https://lawprofessors.typepad.com/agriculturallaw/2020/10/can-i-write-my-own-will-should-i.html

Estate Planning | Permalink

Comments