Holographic Wills? How do I go about writing one?

Question

Basically I just want to state that if I were to die I would like full custody of my son from a previous relationship to go to my husband. He has been basically raising him since he was 14 months old. My son's biological father is a big loser. Can't hold a job longer than 4 months at a time and has only worked 2 weeks out of this year so far and got fired. He's way behind in back child support and he is an alcoholic and presumed druggy (from a couple different reliable sources). He doesn't have a license because of 2 OWI's and never taking classes and he will never again have one in the state we live in because of it.

So as far as custody issues go it would be best to try to get his rights taken away now and then have my husband adopt him?

Answer 1

A holographic will is one handwritten by the testator, usually one who is about to die and has no time or means to do a proper will.

A will cannot be used to transfer custody of a child. At best, it is an indication of your wishes, but a court will have to decide what's in the best interest of the child (unless the father fails to pursue custody and no one raises an issue about your husband continuing to care for your son).

I suspect the best thing would be to have your husband adopt your son. Even if the father objects, from your description, I doubt a court would have a problem with that.

Get a lawyer.

Answer 2

First of all, why a holographic will? Holographic wills are hard to prove and there are numerous restrictions placed on them. In some jurisdictions, holographic wills may be executed only by military personnel actually involved in armed conflict or by sailors at sea, and such wills have limited duration. Even in states where holographic wills are generally recognized, their validity must still be proved through witness testimony, handwriting experts, etc. Why not just do a plain will, with all the necessary formalities, that will leave nothing to chance? It is so much easier, and in the long run, cheaper.

Second, a will is an instrument by which you bequeath property interests. The custody of a child is not a property interest. You can't just leave your child to someone as if he were a bank account. If you meet certain criteria, you may appoint your husband as a guardian, but this is far from a simple matter. This does not look like a straightforward will to me, so you might want to talk to an attorney.

Answer 3

A holographic will is nothing more complicated than a will written and signed completely in your own handwriting. You have to designate that the writing is meant to be testamentary. You do this by indicating that it is your last will and testament on the first page. It should be the first thing you write down on the paper. You also need to make sure holographic wills are enforceable in your state.

Sadly, I don't think you can dispose of your ex-husband's parental rights in this manner. You have to have his parental rights terminated judicially before this will work.

The State ultimately has the last say in child custody matters because it has an interest in the welfare of the children that live within its jurisdiction. There are quasi-constitutional dimensions to a person's parental rights in reference to their own children. Therefore, your ex-will have to have an oppurtunity to be heard before he can be deprived of said rights. Your holographic will does not provide him with an oppurtunity to be heard.

If I were your attorney, I would advise you to try terminate your ex's parental rights. If your ex is as f'd up as you say he is, he will likely agree to it in order to be relieved of his child support obligations.

PS. I know I miss-spelled some words, but the advice I just gave you would normally cost you at least 1,000 dollars, so you and everybody else on this answers page can kiss my mis-spelled a5s.

Answer 4

Unless there's a situation where this is the only way you have to make out a will, you're better off just doing a regular will and getting it witnessed. This is especially true where the custody of your child is involved. Any big office supply store has easy forms you can pick up to fill out. Just do it, get it witnessed, and put it in a safe place.