Jenkins Fenstermaker, PLLC

Local: 304.521.4571

Toll Free: 866.617.4736

Quality. Dedication. Service.

A Holographic Will in West Virginia: Why Caution is Required

Photo of Anna Price

Although it might sound like a three-dimensional image, a holographic will is simply a will that is completely handwritten and signed by the testator, the person leaving instructions on how his or her estate should be distributed at death. West Virginia and just over half of the remaining states recognize handwritten wills. But state law sets out specific requirements for a holographic will in West Virginia to be valid, and testators should use caution in choosing to leave direction to family and loved ones in this manner.

The Pitfalls of Using a Holographic Will in West Virginia

Being able to handwrite your own will is convenient. A testator who is at least 18 years old and of sound mind can handwrite an entire will at home and without the aid of an attorney. This may seem to reduce some of the stress associated with what is normally thought of as a very formal event-planning the distribution of your estate after your death.

The temptation to completely handwrite a will, however, can lull a would-be testator into a false sense of confidence that he or she has adequately shown his or her wishes and has met all of the requirements for a valid will. If a holographic will fails to account for all of the assets in an estate or runs afoul of other estate planning laws, the will may be challenged or otherwise be delayed in its execution. Professional advice from a qualified estate planning attorney is a better way to prevent inheritance disputes.

Issues with Making the Existence of the Will Known

A will is not helpful unless people know about it. When a testator hires an attorney to draft a will, the attorney often has procedures in place for retaining a copy of the will and advising the client how to instruct family about the existence and location of the will.

Because the writer of a holographic will in West Virginia can execute the entire will without anyone's help or knowledge, such wills may not be discovered or, if discovered, may be found well after the testator's death. Unless you let loved ones know you have written a holographic will and where to find it, you run the risk that your will won't be used to distribute your estate.

How a Signature Can Affect the Validity of a Holographic Will

Although the testator's signature on the document is required for a valid holographic will in West Virginia, WV Code § 41-1-3 does not specify where the signature must appear in the document. This has been the subject of a good amount of litigation.

In Clark v. Studenwalt, 419 S.E.2d 308 (1992), the court considered the validity of a holographic instrument even though the testator had not signed at the end of the document. The court held that the testator's intent to make a will could be determined from review of the remainder of the document. Specifically, the testator had written his name in the introduction to the will document, had provided a place for witness signatures at the end, and had obtained witness signatures.

But a holographic will does not always satisfy the statute. More recently, the court reached the opposite result in Wilson v. Parker, No. 18-0156 (W. Va. February 11, 2019), a case involving three sisters and their mother's purported handwritten will. There, as in Clark, the decedent had handwritten a will that had two witness signatures at the end. The decedent had written her name early in the will but had not signed the bottom of the will.

The evidence showed that the decedent had not signed the bottom of the will because of uncertainty about the need for a notary, which was not available when the will was written. Based in part on that evidence, the court was "not persuaded that the decedent intended the writing of her name in the first sentence to be her signature."

Both cases reveal that the placement of a decedent's signature or the lack of a signature can lead to unintended results. At a minimum, proving the signature element of a holographic will can cause delays in the probate of an estate. In the worst case, the holographic will can be found to be invalid and unenforceable.

Why You Need a Survivorship Clause in a Holographic Will

Interestingly, the writers of holographic wills in West Virginia must consider the possibility of the event of someone else's death, too.

Suppose you and your new spouse both bring children into your new marriage. You live in West Virginia, you both take the time to write holographic wills, and you follow the requirements of the statute. You don't think of the possibility that you and your spouse might die at about the same time. You think you are set-you sign your respective wills, and you let the family know. You leave everything to your spouse. Your spouse leaves everything to you.

Sadly, you and your spouse are fatally injured in an incident, and it is not clear which one of you died first. If you died first, your spouse gets everything you left. Your spouse's children, in turn, get everything your spouse has, including what your spouse just got from you. Your own children get nothing.

In states that use the 120-hour rule set out in the Uniform Simultaneous Death Act, your children would have received something. West Virginia, however, has rejected the adoption of that rule. For this reason, it is very important that a testator include a "survivorship clause" in a will, even if the will is handwritten by the testator. Such a clause will explain your intentions should you and your spouse die simultaneously.

Where to Turn for Help with Your Will

Writing a will is more complicated than many people think. In light of the many issues surrounding a holographic will in West Virginia, consulting a West Virginia estate planning attorney can help with preventing inheritance disputes and achieving a testator's wishes. Anna M. Price of Jenkins Fenstermaker, PLLC serves estate planning clients from the Huntington office, providing sound advice to testators, beneficiaries, and contestants alike. For more information, you can reach Anna by calling (304) 523-2100, (866) 617-4736 toll-free, or by completing her online contact form.

No Comments

Leave a comment
Comment Information
Jenkins Fenstermaker, PLLC Best | Client Recommended | 2019