Holographic will versus Last Will & Testament?

Question

My brother has a Last Will & Testament written in 4/02 leaving ALL property to a particular person, a previous significant other, (whom he has had little to no contact with in the past 3 years). My brother commited suicide recentley leaving behind a holographic will that was written in his own writing, that is dated and signed. This holographic will names beneficiaries, including myself (I am his only living next-of-kin). Question is this: Does this holographic will take precedence over his prior legally written Last Will & Testament?

Answer 1

There's really more than one question here, and will be controlled by the law of the state where the estate is to be probated, so I can't give you any definite answers, just illuminate the subject a little bit.

The two broad concerns regarding the will being valid at all are form and capacity.

The laws on the form of holographic wills are usually fairly generous, and probably only require that it unquestionably show the intent to create a will, be reasonably legible and comprehensible, ENTIRELY in the testator's handwriting, and signed. The date probably isn't strictly necessary, but helps establish which of two documents is the more recent. Witnesses probably are not necessary, although you may need one or more people to swear that it is, in fact, his handwriting.

The other is more difficult, and is the question of mental capacity. If the suicide was not long after the writing of the will, that may or may not be considered evidence of a lack of mental capacity. I haven't researched this subject previously, so I can't say without knowing the state and researching cases dealing with the question.

If capacity is a problem, the holographic will may be invalid as a will, and still be considered as a valid revocation of the prior will, leaving the estate's disposition to be determined by the laws of intestacy.

In other words, you need a lawyer. It's not a question of which of two wills controls, it's a question of whether or not EITHER is operative.

Answer 2

A good answer to this question will depend on the law of the jurisdiction in which your brother died. I can only answer as far as the law of the state of Pennsylvania is concerned.

Under Pennsylvania law, 20 C.P.S. section 2502, a will must be in writing and shall be signed by the testator at the end thereof.

The effect of a divorce from your brother's previous significant other has the effect of revoking that will. 20 C.P.S. section 2507 (2).

In order to probate the will, the testator's signature must be witnessed. In Pennsylvania, a non-subscribing witness may be used to witness the testator's signature.

Information on how to probate a will in Pennsylvania is found on the Evans website: http://evans-legal.com/dan/probate.html

Answer 3

In most states the answer is yes if you can prove that he wrote the holographic will and that he met the conditions of will making (sound mind, no duress, etc.) when he wrote it.

Answer 4

http://en.wikipedia.org/wiki/Holographic_will