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Probate Alert: Handwritten Notes on a Will

Posted on: August 9th, 2017

A North Carolina probate case filed in June 2016 by the Court of Appeals in Beaufort County showcases the validity of handwritten notes on a will.

A testator who handwrites notes on a will typically does so with the intent to amend the document. The time and logistical requirements of replacing the will with a revised version may be discouraging for a testator depending on their life circumstances. Handwritten amendments, or holographic codicils, are generally produced without the rigid formalities of a standard typewritten will execution and are absent witnesses.

About James Paul Allen's Handwritten Will Amendments

The recent probate court case pertained to the will of James Paul Allen, which was originally executed in August 2002 in typewritten form and included two witnesses. An article included in the will instructed creation of a life estate for Allen’s real property for the benefit of his nephew and the granddaughters of his life partner, if Allen’s life partner predeceased him.

A handwritten note on Allen’s will instructed that, as of July 2003, the article of the will including the instructions noted above would no longer be followed. The note did not include any specific instructions other than not to honor the referenced article. Allen’s life partner predeceased him and he died in March 2014. Less than a week following Allen’s death, an affidavit for probate of a holographic codicil was filed with the courts. Two individuals familiar with Allen’s handwriting agreed that the note appeared to be in his handwriting. The will was offered for probate a few days later.

Handwritten Notes During Probate

Approximately a year and half later in October 2015, a caveat to the will was filed citing that the notes written on the will “did not constitute a holographic codicil to the will.” Uncertainty also surfaced over whether the note was written in Allen’s handwriting. Following a series of court transfers and a motion for summary judgment, the grandchildren of Allen’s life partner filed an appeal of the summary judgment claiming the handwritten notes did not constitute a valid codicil.

North Carolina's Ruling on Handwritten Notes on Wills

The court’s references to North Carolina case law involving handwritten addenda and holographic codicils were used to substantiate the requirements of a valid holographic codicil to a will. The appeals court determined that a valid codicil needs to express the testator’s “present testamentary intention” and not rely exclusively on future intent. Allen’s note specifically instructed that the particular article in his will not be followed as of July 7, 2003. His note lacked record of the date it was made. Since the note may have been written prior to July 7, 2003, there was insufficient evidence of present intention.

While holographic codicils are recognized if they meet statutory requirements, the court cited cases that involved both typewritten and handwritten addenda; particularly cases like Allen’s that included a note referencing provisions in the will. The court found “where the meaning or effect of holographic notes on a will requires reference to another part of the will, the holographic notations are not a valid holographic codicil to the will.”

Due to this, Allen’s handwritten note fell short of the requirements of a valid holographic codicil. The court dismissed concerns of the validity of Allen’s handwriting since the note itself was invalid. On June 6, 2017, the appeals court found the note invalid and filed reversal of summary judgment.

North Carolina executors who find handwritten notes on a will may inevitably encounter the conflicts described above: Surviving family members’ uncertainty over the validity of the handwriting, multiple appeals court cases, notes that fail to meet statutory requirements, and more. While Allen’s case involved a note with an effective date more than a decade before his death, other estates involve an individual who made changes to their will at the final hour. Our probate attorneys review important items about last-minute will changes here. If the estate involves amended living trusts, learn more about how trusts are revoked, amended, or restated.
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