Unlike some other states, Tennessee recognizes handwritten wills, also known as holographic wills, as a valid way for an individual to direct what is to be done with their assets and wealth in the event of their death. However, just because something is legal does not always mean it is the best course of action. As we’ve examined in the past, there are hidden dangers to using holographic wills, which can crop up when people without sufficient understanding of the nuances and complexities of estate law rely on handwriting their wills.
How do handwritten wills stack up to standard and nuncupative wills, what problems do they solve, and what problems can they cause? These are the questions we’ll take a look at as we dive deep into Tennessee estate law and answer the question—is it ever a good idea to write a handwritten will yourself?
How Holographic Wills Stack Up
Overall, there are three types of wills Tennessee estate law deals with—formal or attested wills, holographic wills, and nuncupative wills. These three types of wills lie on a continuum of formality to informality, with attested wills on one end, nuncupative wills on the other, and holographic wills somewhere in between.
A traditional will is a formal, typed document prepared by an estate law professional that a testator has signed in the presence of witnesses who can attest to the signer being of sound mind. The traditional formal or attested will provides the clearest and most easily legally recognized instructions for distributing the testator’s estate.
A handwritten will is, put simply, a will that you hand-write yourself. Under Tennessee law, for a handwritten will to count as valid, the entire will must be written in the testator’s handwriting. Many handwritten wills end up being invalid, for example, due to a misunderstanding of how much of the will actually has to be written by the testator’s hand. While the will does not need to be signed in the presence of witnesses, two witnesses must prove that the entire will is in the testator’s handwriting.
On the extreme end of the scale opposite attested wills are nuncupative wills. These wills are oral wills made by the testator, in the presence of at least two witnesses who are not beneficiaries of the will. Oral wills must be made by a testator who is in imminent peril of death. These are the least formal type of legally valid will, but have far more restrictions. For example, they can only be valid for personal property, not real estate. As one can imagine, these wills are only used in the most extreme situations.
What are the problems with a holographic will?
While holographic wills can be created quickly and without formalities, it’s common for these handwritten documents to fail to comprehensively account for all assets or proactively head off potential challenges or disputes between beneficiaries, since these documents are not drawn up by legal experts and are often written without consulting experts in estate law and planning. Since the testator doesn’t usually have estate law experience themselves, they can end up misusing or misunderstanding critical terms or topics that lead to ambiguity in interpreting the will. These issues are what makes it so much more common to see holographic wills challenged in court compared to traditional attested wills.
The other factor that makes handwritten wills easy to challenge is the matter of the handwriting itself. A handwritten will, as we’ve previously discussed, must be entirely written by the testator and only the testator. In order to prove this, you need to have people you can trust, who know what your handwriting looks like, and who are prepared to act as witnesses in court to attest that the will’s handwriting is truly your own. Beyond their own testimony, those witnesses also need to have evidence of your handwriting to prove it if challenged.
Hearing all this about the problems with holographic wills, it might sound strange to have a will that can so easily be challenged in court or that doesn’t cover all of your bases concerning who receives what and how, but there are reasons why you might prefer to write a handwritten will. Let’s take a look at a few of them:
When would you want to use a holographic will?
Handwritten wills can present plenty of problems when it comes to dividing and distributing assets and wealth postmortem, but they also have their own use cases that can make them an attractive option—they wouldn’t be legal in Tennessee if they didn’t.
For example, you might find the idea of writing a holographic will attractive if:
- If you do not have access to legal professionals who can draft your will or people who can act as formal witnesses
- If you are faced with an impending medical procedure or sudden illness that might result in your death and wish to ensure your desires for your belongings are documented immediately
- If you wish to keep your intentions completely private without the need to disclose them to witnesses or legal advisors, or avoid external influence or input altogether
- If your estate is relatively small and modest, and therefore will not involve your beneficiaries in complex estate issues that could go to court
While holographic wills have more risks associated with them than formal wills, depending on your situation, it’s not always bad to create a handwritten will. However, if you have been thinking about hand-writing your will, we recommend that you still speak with experts to help you prepare the will and avoid falling into the common pitfalls that lead to holographic wills ending up contested.
There is more to your estate than assets or property. An experienced estate planning attorney gives you a clear, accurate view of your estate, ensuring you won’t miss something critical that could lead to disputes among your beneficiaries.
If you’re ready to create a will, we’re here to help. Contact our Nashville office today to schedule a consultation about your wishes for your estate.
