Holographic Wills

Holographic wills are a handwritten alternative to a solicitor-drafted will. Although appearing to be a cheaper option, they can often result in greater risk of fraud, mistakes and validation problems during probate.

What are the pitfalls you need to avoid? How can a solicitor help ensure your wishes are carried out?

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Do holographic wills need to be witnessed or notarised?

A holographic will is a will that the testator (the person making the will) themselves writes entirely by hand and signs. In England and Wales, a holographic will, like any other will, is valid only if it is properly signed and witnessed in accordance with section 9 of the Wills Act 1837. "Signed by the testator (the person making the Will) with the intention of it giving effect to their will in the presence of two witnesses, who each sign the will in the presence of the testator."

If unwitnessed, a holographic will is not valid, unless it is counted as a privileged will. A privileged will is one that is made by an individual in active military service, as the will can be made and validly executed quickly. It can be either written or ‘nuncupative’ (spoken in front of a credible witness.)

Advantages of holographic wills:

They can be drafted immediately, and would not depend on being able to meet a solicitor, or having access to a computer or the internet.
A deathbed will might theoretically fall into that category.

Disadvantages of holographic wills:

increases the chances of making a mistake, which could cause confusion for your executors and beneficiaries, or even lead to a gift or the will being held invalid;
may mean that you have not had a chance to gather all the information you need, if you are hurrying unduly;
may also mean that you have not had a chance to consult the executors you want to appoint;
increases the likelihood of your will being challenged later on; and
risks the problem of people not being able to read your handwriting!

Can a holographic will be made void if a probate court is unable to determine whether the will was signed by the testator? What would be the time, cost and tax implications?

As above, for a will to be valid, the will must be duly executed (signed by the testator and witnessed by 2 individuals).

If a will appears to be properly executed, there is a presumption that the will has been validly executed. This is known as 'the presumption of due execution'. There needs to be the 'strongest evidence' to rebut this presumption.

If there are doubts as to whether the testator signed the will himself, the witnesses can be traced to determine whether the testator did in fact sign the will.
If there are suspicions that the signature has been forged, you may require a handwriting expert witness. You can find expert witnesses in the Expert Witness Directory, at the National Expert Witness Agency and in the directory of the Federation of Forensic & Expert Witnesses.

If it can be proven that a will has been forged or the testator's signature has been forged, this will result in the will being invalid. In order to establish that a will is a forgery, it has to be proven on the balance of probabilities (i.e. if you can prove your case 50.1% you will be successful) however, given the seriousness of an allegation of fraud, the burden is much tougher to discharge.

Forgery cases are heavily reliant on expert evidence, typically that of a handwriting expert, however this can sometimes prove inconclusive therefore, the whole factual matrix surrounding the will's preparation and execution has to be considered. There have been a number of forgery cases and it is clear from recent court decisions that these are incredibly fact sensitive.
If the validity of a holographic will is questioned after death, or if some of the will is ambiguous, then this can result in lengthy and expensive legal disputes for the family. This could significantly reduce the value of the estate and the amount of inheritance that gets passed on.

If the will is found to be invalid altogether, you will need to look at previous valid wills to determine how the testator's estate will be administered, or if there is no previous valid will, the estate will be administered in accordance with the Intestacy Rules. The Rules of Intestacy put the person's relatives in an order of priority, starting with their spouse, then their children, and so on. Certain family members, such as unmarried partners and step-children, are not recognised at all by these rules, so they could be entitled to receive nothing.

What steps can you take if you believe a loved one’s will is fraudulent, or they have been coerced?

You might suspect undue influence if someone has changed their will in a way that seems surprising, out of character or distinct from the pattern of previous wills. These changes might be:

Unexpected or last minute
Detrimental to them or their estate
Different to the wishes they’ve expressed before.

There might be cause for concern if:

The person benefitting from the new will wasn’t previously included in a will
They stood to inherit a much smaller part of the estate before
The deceased was dependant on them when the changes were made
The deceased was frail or ill when the will was made and possibly more susceptible to forceful persuasion.

How to object to a will on the grounds of undue influence

If you suspect that your loved one has been coerced into writing a will that does not reflect their true wishes, then it is important that you seek legal advice immediately and ideally before any steps are taken to begin to distribute the estate.

Where no application has yet been made for a grant of probate to be issued, it may be possible for your lawyer to lodge a caveat with the Probate Registry to stop any powers being exercised under the terms of the will until the issue of its validity has been resolved.

Where probate has already been granted, your lawyer will immediately move to contact the executors of your loved one’s estate to put them and any other beneficiaries on notice that a possible challenge to the will is being considered and will need to be addressed before the affairs of your loved one can formally be dealt with.

Where a house or other property is involved, your lawyer may also seek to negotiate an agreement which prevents anything being disposed of pending the dispute being resolved. They may elect to support this with the registration of a caution or restriction at HM Land Registry where they consider your claim to have reasonable prospects of success.

Proving undue influence

To establish that undue influence has occurred, it will be necessary for you to show that the terms of your loved one’s will are so far removed from what was reasonably expected that there can be no reasonable explanation other than that undue influence was exerted.
This is a high hurdle to overcome and requires you to prove not just that your loved one was persuaded to write their will in a certain way, but rather that they were positively compelled to do so through coercion which they were powerless to resist.

In assessing whether undue influence has occurred, regard will be had to a range of matters which are primarily geared at determining the ease with which your loved one could have been manipulated and therefore had their wishes overborne.

Among the most important considerations will be their physical and mental health at the time the will was prepared, along with the degree of reliance that they had on others to ensure they were well cared for and that their day-to-day needs could be met.

Generally, the frailer and more dependent your loved one can be shown to have been on the person alleged to have coerced them, the more likely it is that a claim for undue influence will be possible.

Will any potential dispute need to go to court?

While taking a claim to court is certainly an option, in the vast majority of cases it is a step that can be avoided as many disputes which concern a will can be resolved by alternative means. This includes lawyer-supported negotiation or mediation led by an independent third party who is specifically trained to help broker an agreeable out-of-court settlement.
In those cases which do end up before a judge, there is a structured process to ensure that your claim is properly scrutinized. This provides plenty of further opportunities for an amicable resolution to be achieved and to avoid a formal trial.

Time limit

The amount of time you have to bring a claim will vary depending on the grounds for challenge that you are advised to rely on. In some cases, you may have as little as six months from the date on which the grant of probate was issued while in others you may have several years. For this reason, it is important that legal advice is sought promptly and preferably as soon as you become aware that something may be amiss.

What added value can a solicitor provide when creating a will to help demonstrate a testator was of sound mind when written?

In order to make a valid will the testator needs to have 'testamentary capacity.' This means that they need to fully understand what they are doing and the implications of it. If there is any doubt as to whether someone had testamentary capacity at the time of making their will, then it could be challenged.

The test for testamentary capacity to make a will is set down in case law, particularly the seminal matter of Banks v Goodfellow [1870] LR 5 QB. The judgment in this case sets out the test for capacity to make a will as follows:

The testator should understand their act in making the will and the effect of the will;
They should understand what property they have and which is being dealt with/disposed of under the will;
They need to appreciate the claims that may relate to their estate and who they will be giving gifts/inheritances to; and
They should not be suffering from a disorder of the mind that would impact their ability to make decisions or understand the will and its impacts.

The test applies to the capacity of the testator at the time they are making the will and so evidence from that time will be necessary in a dispute over the validity of the will.
If a solicitor prepares the will, they should keep clear notes of the discussions they have with the testator and the instructions the testator gives for drafting the will.
In cases where the testator has known health conditions, is frail/elderly or vulnerable, it is also best practice for the solicitor to arrange for a medical report to be prepared on capacity.

Preparing a well-drafted will is not a simple process, especially when you consider the number of clauses needed to explain the powers and responsibilities of your trustees and executor. Mistakes can easily be made. What are the benefits of having regulated support when drafting a will compared to an unregulated service?

There are a number of options when drafting a will:

Drafting a will yourself
Using online will writers
Other will writing services

Benefits of using a solicitor/regulated service when drafting Wills:

Not all will writers are legally qualified
As they are not regulated, clients will not be afforded the same level of protection (professional indemnity protection)
Solicitors can store wills securely

A solicitor would be particularly advisable if:

your estate may have to pay Inheritance Tax (currently, you might have to pay if your estate’s value (including property) is more than £325,000)
you have a complex family situation, such as former partners or estranged children, and you want to be sure that your estate can be divided as you wish
you want to protect someone’s interests after you have died, such as a disabled family member
you want to talk through the options with an expert or you need some support you can trust.

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Do you have any further questions about creating a will? Please contact our Wills and Probate Team.

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Holographic Wills18^th Nov 2021

by Jenny Oxley on 18^th Nov 2021