In our last post, I discussed the various types of wills. In this post, we’ll talk about drafting your own holographic will. We’ll discuss the holographic will, as opposed to a type-written will, because this is the most common, non-attorney drafted type of will. Again, I like to think of these as "death bed" wills, meaning that most people generally draft these types of documents closer to death.
As we stated previously, the holographic will is written, signed, and dated by the testator (the person drafting the will). The important thing to remember is that Oklahoma, and generally most other states, requires that the testator hand write the entire will.
You should pay particular attention to the writing requirement, because the will is invalid if any portion is not in the testator’s handwriting. If there’s an invalid will, the laws of intestate succession apply. Any provisions which you thought you’d considered no longer apply. Your state’s statutes prevail, and your property gets divided according to your state’s laws. In some cases, these may not be the people you’d choose to get your property.
You may sign and date the document anywhere you choose. These are not as important as the writing requirement, but the three elements must exist together on the document if you want to have a valid will.
Most people, intentionally or not, have drafted some sort of holographic will. I remember as a young boy I’d pretend to draft our Last Will and Testament" where my entire baseball card collection would get delivered to my brother or best friend upon my death. I’d use a simple sentence like "I give my baseball card collection to John", then sign and date the document, and deliver it to my friend. This is an example of a valid will.
However, the wills I created as a child lacked one important element: capacity. Regardless of the type of will, it cannot be valid unless the testator has capacity to create the document. In Oklahoma, any person over 18, in a good mental state, has capacity to create a will.
It’s very important to remember these specifics when you’re creating a holographic will. In our final part of this series, we’ll discuss what content you should include in your will.
Note: you can find part 1 here, and part 3 here.
