What is the enforceability of handwritten notes in a Will or other estate planning document?
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.
We do not recommend anyone 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. They are not acceptable in the state of Maryland unless written by a soldier during battle.
Under the principles of a holographic Will, in states that allow for them, 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, often called a Non-Judicial Settlement Agreement, 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.