Are handwritten notes on a will enforceable?
This is a common scenario: Family members have a copy of a loved one’s will that’s been edited with handwritten scratch outs and addendums. Is it legal? Will a court enforce it? The answer is that it depends.
First of all, it isn’t recommended to make handwritten notes on estate planning documents. Those notes can create a mess for heirs down the road. They can open the will to challenge and complicate the probate process.
To make a legally enforceable change, you have two options: 1) Replace the prior will with an entirely new document, explicitly stating that all prior wills are revoked, or 2) Add a codicil that makes clear which parts of the old will are being changed.
But let’s say someone has gone ahead and made handwritten changes anyway. The next question is whether the courts will accept those changes.
Here are some scenarios:
Holographic wills: A holographic will is a document that has been written in the decedent’s own hand and signed and dated. (No witness or notary required.) Some states will accept holographic wills, to varying degrees. But even when they are accepted, they won’t qualify for informal or expedited probate.
Under the principles of a holographic will, handwritten addendums may be judged valid if each individual edit is signed and dated.
The issue of intent: In interpreting handwritten changes, the courts need to determine whether those edits actually met the drafter’s intent. It’s possible, for example, that someone may simply have been mulling or brainstorming possible changes.
Heir agreement: When handwritten notes have been made, the best possible scenario is that all the interested parties agree that the handwritten notes match the decedent’s intent. If they collectively agree and sign a statement to that effect, the court will generally honor that agreement. The issue, of course, is when an interested party challenges the validity of edits.
If you wish to modify your documents, speak to an attorney to ensure your will remains legally enforceable and matches your intent. An attorney can also help you review a family member’s will and evaluate any concerns you have over handwritten changes.
The challenges of death bed estate planning
When a client walks into our office and tells us they only have a short time to live, our planning options are limited. In some tragic cases, we’re called to the client’s bedside because they’re simply too weak or injured to travel.
No matter what the circumstances, these “death bed” planning sessions are always emotionally taxing, placing an incredible emotional burden on the person who’s dying.
Here’s what you should know about last-minute planning before you find yourself, or a loved one, in this situation:
- Key documents: Your attorney will likely help you put some basic documents in place, including a last will and testament, power of attorney, and healthcare proxy. They may also help you update beneficiary designation forms for certain assets that can avoid probate.
- Will, not a trust: If death is expected within weeks, it’s likely no longer possible to execute a trust in order to save probate costs, direct the use of an asset after you’re gone, or provide other benefits, such as protecting an heir from debt collectors or claims in a divorce.
- Tax planning: It’s also difficult to do much tax planning at this stage. The Internal Revenue Code has a three-year claw back period designed to prevent someone from making tax advantaged gifts right before they die. The one notable exception to this rule is annual exclusion gifts. The per gift limit in 2022 is $16,000, and you can make gifts to as many individuals as you like in order to draw down your estate to within the lifetime exemption of $12 million. (Note the lifetime exemption is slated to drop to $6.2 million at the end of 2025.)
- State of mind: A person making death bed estate plans is often in a fraught, emotional state of mind. It may be difficult for you to think clearly enough to provide a detailed asset list and engage in a thoughtful discussion of family gifts and dynamics. You may remember something (or someone) hours or days later and want another rapid change to your plans.
- Undue influence: Your advisor will need to ask family members to leave the room to avoid future claims of undue influence. If death is near, any temporary separation can be a source of trauma for your loved ones.
- Potential challenges: Last minute estate plans are targets for probate challenges. An heir or interested party unhappy with your will may claim you were ill, under the influence of medications or of unsound mind. An experienced attorney will work to take the necessary precautions to avoid such claims, but any last minute plan can introduce this element of risk.
- Pandemic restrictions: COVID-19 presents a potential challenge to death bed planning as isolation and social distancing requirements may prevent you from having a document witnessed and notarized. Fortunately, many states relaxed these rules and now allow electronic and/or remote witnessing and notarizing.
Creating a last-minute plan requires responsiveness and speed. Additionally, it is important to anticipate potential challenges and put mechanisms in place to demonstrate that the testator was of sound mind when creating their last will.
That said, as challenging as it is to draft a will on your death bed, it is still better than dying intestate (without a will). A rushed effort is preferable to nothing.
Nonetheless, last-minute planning can open the door to hurt feelings and family disputes. Your best course of action is to complete your will early, well before you need it. When that’s not possible, look for an estate planning attorney who can be empathetic about the emotional challenges while helping avoid future challenges in probate.