A Holographic Will is a will entirely in the handwriting of the testator. These are addressed in various jurisdictions under the Probate Code for each state. In Texas, they are covered in Section 59 of the Texas Probate Code, as follows:
“Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen…”
Holographic wills are the source of litigation, and not generally recommended. However, if the chain of title in the grantor, grantee records should terminate or has a gap, checking the probate records may lead to a holographic will. Of course, the landman, if one is utilized, should obtain a copy of the will and call attention to the document in the runsheet or transmittal information to the client or attorney.
In addition, the following points should be considered when evaluating whether a holographic will properly chains title by the decedent into the person inheriting the property:
- The form of the document is not dispositive as long as it is genuine and the intent is clear. James v. Haupt, 573 S.W. 2d, 285, 289 (Tex. Civl App.-Tyler 1978, writ ref’d n.r.e.). If you can see from the face of the document what the testator intended, and can chain it into the next party, the document will probably hold the chain.
- Words not in the testator’s handwriting can be ignored as surplus if the words are not necessary to complete the will and do not alter its meaning. (Maul v. Williams, 69 S.W. 2d 1107 (Tex. Comm. App. 1934). If there are words on the page such as the heading from a hotel stationery, or trademark of the paper manufacturer, those words will not cause the will to fail if the will is complete and understandable without those additional words.
- The testator’s signature may appear anywhere in the body of the will and may be informal. (Lawson v. Dawson’s Estate, 21 Tx. Civ. App. 361, 53 S.W. 2n 64 (1899, writ ref’d), and (Barnes v. Horne, 233 S.W. 859 (Tex. Civl. App. 1921). The will can be used to chain title if the signature is present – even if it is the nickname (not proper name) of the decedent.
- No date is required on a holographic will. (Gunn v. Phillips, 410 S.W. 2n 202 (Tex. Civ. App-Houston [1st’ 1966, writ ref’d n.r.e.) The document does not have to be dated. If not dated, the filing date may be used for placing it in the chain. If a conflict exists with another filed and dated document, the client and their attorney will have to address the issue of priority and effective date.