An Australian judge recently issued what may be the first court decision of its kind anywhere in the world. Justice Peter Lyons of the Supreme Court of Queensland ruled in early November that a last will and testament found on a suicide victim’s iPhone was admissible to probate. The deceased individual apparently typed the will on the “notes” application of the phone. According to the Brisbane Courier-Mail, Justice Lyons said “although the will had not been witnessed, the young man had created it with the clear intention of it being legal and operative before he ended his life just moments later.” The judge added this was an unusual circumstances and people should not ordinarily prepare wills on their mobile phones.
“Holographic” wills are legal in many common law jurisdictions, including California, but they still must meet certain requirements. In California, a holographic will must be entirely in the maker’s handwriting and signed. Unlike typewritten wills, a holographic will need not be witnessed to be admissible under state law.
It’s important to understand, however, that holographic wills may not be treated the same in every state (or foreign country). That is why they are not recommended as estate planning documents. A recent case from the State of New Jersey helps explain the problems that can arise with holographic wills.
The Alleged Will of Antonia Pace
Antonia Pace and her husband were immigrants from Malta. In 1980, the couple purchased a home in Middletown, New Jersey. They moved to an apartment in New York State in 2006 but kept the New Jersey home. Antonia’s husband died in 2006. She continued to live in New York until her death in 2009.
One of Antonia’s surviving children, Albert Pace, found a document two months after his mother’s death that appeared to be a holographic will. The document was written in the Maltese language. Albert Pace had a translation prepared. The document, dated 2008, said, “This is my will,” and left everything in Antonia Pace’s estate to Albert Pace. There was no provision for Antonia Pace’s other surviving children or their descendants.
Because Antonia Pace lived in New York while owning property in New Jersey, probate proceedings were necessary in both states. This presented a problem. New York does not admit holographic wills, except for those made by members of the armed forces during a conflict. Therefore, Eric Pace, another of Antonia’s children, opened a New York estate as if she’d died without a will (intestate).
Albert Pace, however, asked the New Jersey court to admit the holographic will. The probate court said it lacked the authority to even consider such a request. A state appeals court disagreed. It said a New Jersey court could consider the will so long as there were no proceedings pending in another state. In this case, the New York probate was already settled, therefore the New Jersey probate court had the authority to determine if the holographic will was admissible under that state’s law.
Avoiding Interstate Confusion
In any estate planning situation-but especially where you own property in a state other than your normal residence-it’s critical to have a will properly drafted by an experienced San Diego estate planning attorney. Holographic or other “do it yourself” wills have no place in these circumstances. Contact the Law Office of Scott C. Soady today if you have any questions.