What image pops into your head when you think “Last Will and Testament”? For most of us, it is an image cloaked in formality, a thick stack of paper full of detailed directions clearly establishing our wishes. For others, scribbles on the back of a napkin may come to mind. Good idea? Not so much. This handwritten type of will is referred to as a “holographic” will, and although it’s hard to believe, a holographic will could, in fact, be deemed valid by courts in many states. However, you are certainly taking a huge risk if you decide to scribble out your will in your own handwriting.
This is especially true if your handwriting happens to be hardly legible, or you are not precise in the way you use the written word. Wills, if legally enforceable, are interpreted based upon what the words mean, not what we might understand them to mean reading between the lines. Furthermore, a will may not control all of your assets, so a statement that a particular item is to go to a particular person may have no legal effect.
Recently, a case involving this type of holographic will made the headlines. Famous painter, Thomas Kinkade, “Painter of Light”, died in April of 2012. He had a formally constructed estate plan using a Will and a Revocable Trust in place that was devised when he was together with his long-time wife, Nanette. However, Thomas and Nanette Kinkade had been separated for about two years prior to his passing. Nanette had filed for divorce, and the painter took up with his girlfriend, Amy Pinto-Walsh, with whom he lived with for eighteen months prior to his unexpected death.
You probably already know where this is going. After the painter’s death, Pinto-Walsh came forward with holographic wills that were supposedly drawn up by Thomas Kinkade, who, as a professional painter, was capable of some remarkably beautiful renderings. These supposed holographic Wills didn’t quite match up to this standard. The chicken scratching of the holographic Wills were a mess. An expert who examined the documents suggested the painter may have been intoxicated when he put pen to paper because they were so sloppily done.
The painter’s scribble purported to leave valuable real property and millions of dollars to Pinto-Walsh, money which was supposed to be used for the creation of a museum that would house Kinkade’s art. A legal battle over the estate erupted between the two women. Part of the problem was that much of the property was owned through the pre-existing Revocable Trust, property which might not be available to be controlled by even the best of subsequently drafted Wills. The legal actions resulted in a confidential settlement after huge and unnecessary legal fees.
Time and money were wasted in a dispute that could have been avoided, had Kinkade simply returned to his estate planning attorney and said, “my circumstances have changed and I want to change my Will and Trust.” This updated estate plan would have reflected these changes in relationship status and circumstances. The lessons to be learned? Don’t take you existing legal documents for granted, keep them up to date; don’t be a do-it-yourselfer, rely on someone who knows how things work; and, most of all, don’t drink and draft.