Handwritten and Oral Wills

Although most people execute their wills in typed format in order to avoid the misconceptions that frequently arise with the more informal oral and handwritten wills, the latter two types can still be considered valid in North Carolina. However, handwritten and oral wills must adhere to strict requirements set forth by state law in order to be enforceable. In addition, even if they are valid, these types of wills are subject to a great deal more ambiguity and the potential for fraud than valid attested, typed wills are. For this reason, properly attested, typed wills are the almost universally preferred format for a last will and testament.

However, sometimes when a person passes away, an oral or handwritten will is all that is available and it is necessary to rely on it in order to carry out the testator’s wishes (this process is referred to as “probating the will,” or probate). It is critical to have a skilled estate law attorney to assist with this process, especially if there are any doubts as to the authenticity of the will.

A handwritten, or holographic, will has the following requirements in order to be held valid under North Carolina law:

• Written entirely in the writing of the testator (the person making the will).
• “Signed” by the testator. This can include the testator’s writing his or her name in print on the will.
• The will must be found in a “safe place” where the testator could have been expected to keep such a document, such as amongst his or her valuable papers and effects, in their safe-deposit box, or with a disinterested person (i.e. non-beneficiary) with whom the testator placed it for safekeeping.

Unlike a typed/attested will, a handwritten will is valid on its face without witness signatures to the testator’s signing. However, in order to admit a handwritten will to probate after the testator dies, you must have three (3) witnesses testify that the handwriting in the will is that of the testator. In addition, one (1) of the witnesses must testify that the will was found in the “safe place” described above.

As the authenticity of the handwriting must be affirmed by the witnesses mentioned above, disputes as to handwritten wills are commonplace. If you have to probate a handwritten will, it is important to have the experience of an estate law attorney assisting you with the process.

Oral, or nuncupative, wills, are only allowed in extremely limited circumstances in North Carolina. If a person is on their deathbed or in other immediate peril, and ends up not surviving the deathbed or peril, then he or she may verbally declare a will in the simultaneous presence of two competent witnesses whom the testator specifically requests to bear witness. If the person thinks they are on their deathbed but ends up surviving, it will not be considered a valid will.

In addition, an oral will adhering to the above context may only be used to bequeath personal property, i.e. not land, buildings or things attached to the land.

In order to be enforceable, an oral will must also be offered for probate within six (6) months of the testator speaking it, unless one of the witnesses reduced the statement to writing within 10 days of the testator speaking it.

Finally, an oral will cannot serve to modify the speaker’s previously existing, valid written will. In other words, even if an oral will meets all of the other requirements described above, it will be considered ineffective if the person already had previously executed a valid written will that was still in effect.

Proving that a deceased person’s final words constitute a legally binding will is an uphill battle. So-called “witnesses” can come out of the woodwork claiming that the deceased made oral bequests. It is for this reason that North Carolina is one of a very few states that will even consider a claim of an oral will. If you are involved in the probate or contesting of an oral will, it is extremely important to have skilled legal counsel experienced in estate law assisting you.

Arnold & Smith, PLLC is a civil and criminal litigation firm in Charlotte, North Carolina. Our dedicated attorneys handle a wide variety of estate law matters including the creation and contestation of wills. Contact us today for a consultation with one of our experienced estate law attorneys.