Question: My father had to have emergency surgery and unfortunately didn’t make it. Since he didn’t have a Will I advised him to write up a Will before he went into surgery. He did in fact scribble some notes on a memo pad prior to going into surgery that he said was intended to be his Will. Can I successfully probate this document as his Will?
Answer: In some states, Maryland not being one of them, heirs have successfully probated Wills that have been written on everything from a napkin to an automobile fender.
Maryland, however, does not normally allow a handwritten Will to be admitted to probate. Most likely, a court would disallow the handwritten document and the laws of intestacy will be applied to the estate.
I will note that there are some limited circumstances in which Maryland will allow a holographic Will to be admitted to probate. If the handwritten Will is written by a member of the armed forces while he or she is outside of the United States, Maryland should recognize the Will (which becomes void one year from the date of the testator’s discharge from service).
Comment: A number of states do permit the Will written on the back of an envelope. Generally speaking, the Will must be completely in the testator’s handwriting and must be signed (and preferably dated). The document should make reference that the intention is for the document to be a “Last Will and Testament.”
However, not surprisingly, many times these handwritten Wills become the subject of litigation after the testator’s death when there are obvious mistakes related to unclear intentions or wording. I’ve read cases where a handwriting expert is required to compare samples of the testator’s handwriting where the family was contesting whether or not the document was intended to be the person’s Will.
As always, if you have questions or would like to know more about the preparation of Wills please contact Steven E. Shane at:
firstname.lastname@example.org | 301.575.0313.
Steve provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.