Deathbed last wishes and handwritten wills

Deathbed last wishes and handwritten wills

| Feb 7, 2021 | Firm News

Whether planning a Last Will and Testament in North Carolina, helping a loved one through the will process or facing probate, two common concerns are whether courts admit handwritten wills with no witnesses or deathbed last wishes. 

It comes as no surprise that states disagree about these issues. North Carolina law recognizes both spoken and handwritten wills; however, they may be uniquely open to challenges and disputes. 

Holographic wills

holographic will is a will that the testator writes by hand and stores with the purpose of distributing assets after his or her death. Instead of formalizing a will and having witnesses sign to validate it, estate planners may write a will as long as it is in their own handwriting and as long as others can decipher and discover it after they pass. 

A holographic will may require witnesses to the testator’s handwriting, may require handwriting analysis and may need further verification before the state will recognize its validity. This is especially true if there is any dispute or disagreement about the origin of the will. Additionally, there may be disputes about the mental condition of the testator if a holographic will expresses anything unusual or inconsistent with previous desires. 

Nuncupative wills

nuncupative will is a will that the testator speaks on a deathbed or during a “last sickness.” For example, a mother may say as her last words that she wishes all of her property to pass to her daughter. 

A nuncupative will requires witnesses, evidence and verification that the testator actually said the words the hearers claim. Not only this, but nuncupative wills also require proof that the testator was in sound mental condition at the time in question. 

North Carolina law

While North Carolina recognizes nuncupative and holographic wills, these leave the door wide-open to dispute and dismissal. 

If the testator left another valid will behind, it is unlikely that a court will recognize changes by a later nuncupative or holographic will without overwhelming evidence. 

Ultimately, all wills are subject to state laws and prior agreements. For example, no type of will can override the beneficiaries of a trust or insurance policy, and state laws do regulate some inheritance rights.