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"Albus" and "Severus" are making a will together. They do not want to bother with an attorney or witnesses, so Severus handwrites it, under the assumption that doing so will make the will holographic. They both sign the will. After Albus dies, there is a dispute over some of his property.

As far as I can tell, there are three possibilities here:

  1. The will is holographic for both of them (even though it is Severus' handwriting), so it is valid.
  2. Since Severus wrote it, the will is only holographic for the portions applying to his property. The parts applying to Albus's property (including the disputed parts) are invalid.
  3. Since Severus wrote it but not Albus, the entire thing is invalid.

Which is correct?

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  • 18
    A Will for two people in one instrument is a pretty foreign concept. I can't say that I've ever encountered one in practice, in the media, in court cases, in law textbooks, or in anyone's war stories, and I am a former professor of estate planning with 25 years practicing law who has taught dozens of continuing education courses on will drafting. It just isn't a thing and any judge encountering one wouldn't be quite sure what to do with it. Two settlor trusts are common in community property states but two person wills are unheard of.
    – ohwilleke
    Commented Nov 28, 2023 at 21:45
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    Are joint wills valid at all? I could just be unaware of this, or it could be different in Texas, but my understanding is that a will must correspond to one person. For example, my grandparents had wills that were virtually identical (AFAIK the only difference was that my grandfather's left everything to my grandmother if she was still living when he died, and hers said the opposite), but still separate documents.
    – Someone
    Commented Nov 28, 2023 at 21:46
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    @Hamasarewarcriminals In that context the term "joint wills" means jointly prepared wills with parallel provisions in two different instrumeents, not a single instrument providing for the disposition of two people's property.
    – ohwilleke
    Commented Nov 28, 2023 at 23:39
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    @ohwilleke In Texas, the tagged jurisdiction, those are called "joint and mutual wills" and they are fairly commonly used for married couples who want to leave all community property to the survivor. The will in the OP's question would not be a holographic will because part of it is in Albus's handwriting (his signature), and it would not dispose of any property. I am posting an answer.
    – Wastrel
    Commented Nov 29, 2023 at 13:42
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    @Seekinganswers Magical wills were always limited to Louisiana within the U.S. and were recently abolished there. Magical wills can't be holographic by definition.
    – ohwilleke
    Commented Nov 29, 2023 at 15:03

2 Answers 2

8

The will is not a holographic will, but not for any of the three reasons.

In Texas, the Probate Code sets forth the requirements for a will and the exception for a holographic will. A holographic will is "a will written wholly in the testator's handwriting" and "is not required to be attested by subscribing witnesses."

This is not a holographic will because Albus signed it. It is not wholly in Severus's handwriting. It would not transfer any property from Severus to Albus or vice versa. Albus's signature is not even sufficient to witness Severus's will, because two witnesses are required.

I think what these two people want, assuming that each wants to leave all his property to the other, is a joint and mutual will, which has pros and cons as the linked article says.

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Any answer would be pure speculation.

Joint wills that provide for the property of two separate people in one instrument simply aren't done (not truly never, but almost never).

N.B. Sometimes the term "joint wills" is used to refer to separate instruments (usually one for one spouse and one for the other spouse) prepared by the same person and prepared and executed at the same time with mirror image or related provisions prepared as part of an overall estate plan rather than as a single instrument that deals with the rights upon death for two testators. In contrast, a single instrument that is a joint inter vivos trust (i.e. a trust created during life rather than at death) that provide for the property of two settlors (usually spouses) are common in community property states - but the formality requirements for inter vivos trusts are different than the formality requirements for wills.

There is therefore no case law grappling with the issue presented by this question (the validity of a half-holographic joint will). It would be a question of first impression in pretty much all of the common law case law. And, there are reasonable arguments for any of the possible outcomes, so there is no way to predict how such a case would be resolved.

Usually, in cases of first impression, an exhaustive analysis of all of the facts that would otherwise be arguably irrelevant is undertaken, and the judge would do what seems most just under those precise circumstances.

The $500 they saved by not using an attorney or witnesses probably resulted in litigation costs of $50,000-$100,000 for their heirs.

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    I can see a judge interpreting this in very different ways depending on the details. If the will in Severus' handwriting says that Severus inherits everything, then that looks super shady. If it says that everything goes to charity to Severus' detriment, then I'd be far more likely to believe it. If this was an actual case, you could probably write a small book analyzing all the small details of it.
    – bta
    Commented Nov 30, 2023 at 2:18

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