November 11, 2004

Devries Column

Why a handwritten will may not be the best way to go

This week’s question:
I have read where a handwritten will in California is legal. Is this true? If so, I may want to just write my own will and save a lot of legal expense. What do you think about this?

Charlie C.
Almaden Valley

Dear Charlie:
In short, Charlie, yes you can write your own will in California but I don’t think you want to do that. Let me explain.

First of all, a handwritten will is known as a “holographic” will. My Webster’s defines “holographic” as coming from Late Greek holographos, to write. “A document wholly in the handwriting of its author.”

California Probate Code §6111 provides that a non-witnessed will is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” (A “testator” is one who makes a will.)

So, a will if entirely in the handwriting of the will maker can be valid in California as a holographic will.

But, and this is a big “but,” that is not to say you want to do that. There are too many areas for possible mistakes and you may save a few dollars in legal fees in the short run but end up with a big disaster in the long run.

A recent case in California points out how risky a handwritten will may work. The case is Estate of Goyette, 04 C.D.O.S. 9305, October 18, 2004. In this case from Sutter County, Joseph wrote out his own will. In the will he stated:

“I wish to leave to James Hayward 50 percent of my money and 50 percent of my money to my neighbor and friend Vi York."

“I wish to leave James Hayward the lot across the street from my home."

“I wish to leave Vi York my home and the lots around it.”

Joseph died in 2001, leaving no spouse or children. When he died, he left an appraised estate of $741,197,

including the following assets:
- retirement savings accounts, checking and savings accounts, and certificates of deposit $231,481;
- money market account $81,879;
- Fidelity U.S. Government Reserves Fund $9,576.14;
- United States treasury bills $304,184;
- United States savings bonds $25,628;
- Real property $78,500; and
- Miscellaneous personal property $10,950.

Of course, a dispute arose as to the meaning of the words “my money.” York and Hayward argued that “my money” meant all of Joseph’s wealth. In response, one of the heirs, Eleanor Harkey, argued that “my money” referred only to “funds (or medium of exchange, i.e., cash or cash equivalents).”

The Court of Appeal framed the issue as follows: What does the phrase “my money” mean in a holographic will?”

The Court concluded that the trial court correctly held “my money” included bank accounts and certificates of deposit, the money market account, the Fidelity U.S. Government Reserves Fund, treasury bills and savings bonds. This conclusion was reached only after a full analysis of the facts of the case, a review of the cases interpreting the phrase “my money” and the rules of construction of wills.

How can you (or better yet, your beneficiaries) avoid such a mess? It seems to me, Charlie, that it would have been much better for Joseph to spend a few dollars and have a living trust, pour-over will, and related documents drawn up by an attorney. The cost for those services would seem to be well worth it. Of course, that does not guarantee that the family will not be fighting when you are gone, but it may reduce the chances of bickering and accompanying substantial cost and permanent hard feelings usually surrounding litigation.

If you want to read the Estate of Goyette case for yourself, you can do so by clicking on the following link: http://caselaw.lp.findlaw.com/data2/californiastatecases/c045728.doc My usual note of caution — you should ask a licensed attorney to help you with the full understanding and implications of a case like this.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408)268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, DeVries will not disclose your identity or any details about your situation. Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.