Tuesday, September 24, 2019
Kevin Bannardo & Mark Glover recently published an Article entitled, The Location of Holographic Wills, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
North Carolina should abolish its location requirement for making a holographic will. Under the North Carolina holographic wills statute, a handwritten document must be found in an approved location after its author’s death in order to be regarded as a holographic will. No other state has mandated a location requirement for holographic wills since 1941.
The location requirement furthers neither of the core functions of will execution formalities: it makes probate courts’ decisions less efficient but no more accurate. And, because holographic wills in North Carolina are not technically executed until they are found postmortem, confounding doctrinal issues arise when testators attempt to revoke them before death. The location requirement of the holographic wills statute imposes costs without countervailing benefits.
Thus, the North Carolina General Assembly should abolish the location requirement from the holographic wills statute. In its place, the location in which a decedent stores a purported holographic will should be relegated to simply one contributing factor in assessing testamentary intent. Such a revision would reflect sound policy and bring North Carolina into accord with the rest of the country when it comes to the making of holographic wills.