Formal Wills Versus Informal Wills

A traditional will must satisfy strict formalities. In most states, the testator must be an adult of sound mind, the will must be in writing, signed by the testator, and witnessed by two competent witnesses. Some wills, however, do not follow this pattern. Two of the most commonly tested informal types are the holographic will and the nuncupative will. Paralegals who work in probate and estate planning must understand when these documents are valid, how they are proved in court, and why attorneys generally advise clients against relying on them.

Both topics appear regularly on paralegal certification exams because they test your understanding of what makes a will valid. Reinforce your knowledge with the estate planning deck in the ParalegalPrep flashcards.

What Is a Holographic Will?

A holographic will is a will written entirely, or in its material provisions, in the testator's own handwriting and signed by the testator. It is generally not witnessed. Roughly half of the states recognize holographic wills, either by statute or through adoption of the Uniform Probate Code (UPC).

Requirements Under the UPC

Under the UPC approach, a will that does not comply with the witness requirement is still valid as a holographic will if the signature and material portions of the document are in the testator's handwriting. The material provisions typically include the identification of beneficiaries and the property being given. Printed or typed portions, such as a pre-printed form heading, can usually be disregarded as surplusage so long as the handwritten material provisions are clear.

Some states are stricter and require the entire will to be handwritten, dated, and signed. Other states do not recognize holographic wills unless they were executed in a state that does.

Proving a Holographic Will

Because no witnesses watched the testator sign, proof relies on the testator's handwriting. Typically, two witnesses who are familiar with the testator's handwriting must testify that the writing and signature are genuine. Expert handwriting analysis may also be used. The proponent of the will bears the burden of establishing validity.

Common Problems

Ambiguity. Laypersons rarely use precise legal language, which often leads to litigation over the meaning of a bequest.
Testamentary intent. A letter that merely discusses how the writer wishes to divide property may not show the required intent that the document operate as a will.
Lack of a residuary clause. Property not mentioned passes by intestacy.
Lost documents. A handwritten will can be misplaced or destroyed, which raises presumptions of revocation.

What Is a Nuncupative Will?

A nuncupative will is an oral will, spoken by the testator, usually in the presence of witnesses, and often during a final illness. Because the risk of fraud and faulty memory is high, only a minority of states permit nuncupative wills, and those that do impose tight limits.

Typical Statutory Limits

The testator must be in imminent peril of death or in the last illness and must die of that condition.
The testator must declare the will before a set number of witnesses, commonly two or three, and ask them to bear witness that it is the testator's will.
The oral statement must be reduced to writing within a short period, often 30 days, and then submitted for probate within a limited period after death, such as six months.
The will may typically pass only personal property, and often only up to a capped dollar amount. Real property cannot be transferred by an oral will in most states.
Some states restrict nuncupative wills to soldiers in actual military service or mariners at sea.

Comparison Table in Words

A holographic will is written; a nuncupative will is spoken. A holographic will usually needs no witnesses to execution but requires proof of handwriting; a nuncupative will requires witnesses to the oral declaration. A holographic will can dispose of any property recognized by the statute, including real estate; a nuncupative will is generally limited to personal property of modest value. Both are exceptions to the standard execution formalities, and both are highly vulnerable to challenge.

Revoking and Changing Informal Wills

A holographic will may be revoked by physical act, such as tearing or burning it with intent to revoke, or by a later will or codicil. A later holographic codicil can change a witnessed will and vice versa, provided the later document satisfies the requirements for a valid will in that state. A nuncupative will is typically revoked by a later will or by the passage of time, and many states provide that it expires if the testator survives the emergency and does not repeat the statement.

The Paralegal's Role

When a decedent leaves a handwritten document, the paralegal may be asked to:

Locate the original and secure it, since photocopies raise lost will issues.
Identify witnesses who can authenticate the handwriting.
Gather exemplars of the decedent's handwriting such as checks, letters, and cards.
Draft the petition for probate and affidavits for the personal representative.
Determine the intestate heirs who must receive notice and may contest the will.

Frequently Asked Questions

Does a holographic will need a date?

Under the UPC, no. Some states require one. An undated will can create problems if the testator also left a later will.

Can a typed will signed only by the testator be valid?

Not as a holographic will, since the material provisions are not in the testator's handwriting. It would likely fail unless it satisfies the witnessing requirements.

Are nuncupative wills common?

No. They are rare and heavily regulated. They remain testable because they illustrate how strictly will formalities are enforced.

Why do attorneys discourage informal wills?

They invite disputes, lack self-proving affidavits, and often fail to address contingencies such as predeceased beneficiaries and taxes.

Exam Strategy

On the exam, read the fact pattern carefully for clues about handwriting, witnesses, the type of property, and the testator's condition. Match the facts to the applicable rule, then check whether the question states the jurisdiction. Ready to practice? Create your free ParalegalPrep account, quiz yourself with estate planning flashcards, and see all study options on the pricing page.

Understanding Holographic and Nuncupative Wills: Estate Planning Exam Guide