Maryland Estates and Trusts Article § 4-103 provides for the validity of holographic wills[1] in the limited circumstance of a testator who is serving in the Armed Services provided: (i) that it is signed somewhere outside of: a state of the United States; the District of Columbia; or a territory of the United States; and (ii) that such holographic will is void after one year after the discharge of the testator from the Armed Services unless the testator dies prior to the expiration of the one year or does not possess testamentary capacity at any time after the expiration of one year. A holographic will made outside of Maryland will be held valid if the will is in writing and signed by the testator provided it is valid under the law of the domiciliary state of the testator or in the place where the will was executed. Md. Code Ann., Est. & Trusts § 4-104.
Not surprisingly, Maryland will give full effect to any authenticated record of probate in a sister state. Roach v. Jurchak, 182 Md. 646 (1944). Additionally, Maryland courts will apply the law of a sister jurisdiction to determine whether a holographic will is valid for purposes of distributing Maryland property. In Wright v. Nugent, 23 Md. App. 337 (1974), aff’d, 275 Md. 290 (1975), the issue was the efficacy of a holographic will executed by a domiciliary of the District of Columbia in Virginia. The decedent owned real estate in Talbot County, Maryland. The court in Wright held that when the situs of property of a decedent is in Maryland, his properly executed will may be admitted to probate in Maryland. A properly executed will is one that is executed in conformity with the law of the place where it was executed, and according to an affidavit submitted to the court, the holographic will conformed to Virginia law.
Many states have authorized holographic wills by statute. According to Restatement (Third) Property: Donative Transfers § 3.2(a):
“Holographic will formality has evolved through three phases:
- Typical first-generation holographic-will statute. ‘A holographic will is one that is entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and need not be witnessed.’
- Second-generation holographic-will statute – Original Uniform Probate Code. ‘A will, which does not comply with [the requirements for an attested will] is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.’
- Third-generation holographic-will statute – Revised Uniform Probate Code. ‘A will that does not comply with [the requirements for an attested will] is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting’.”
Accordingly, Maryland courts may be called upon to interpret the law of various jurisdictions regarding holographic wills. The “first-generation” statutes required that all of the provisions be handwritten. A wholly handwritten will was recognized as reliable as one following formal attestation provisions. In application, however, many wholly handwritten holographic wills were found to be drafts that did not match the intended Last Will and Testament of an individual. Although the handwriting provides superior evidence of genuineness, an entirely handwritten will does not have the evidentiary values associated with having attesting witnesses observe and participate in the execution of a final will. These evidentiary witnesses can provide protection for the testator to assure that the will was not a product of coercion and to establish that the testator had capacity. See, e.g.Kimmel Estate, 123A 405 (Pa. 1924) (holding that an informal, personal letter to decedent’s children was intended to bestow a posthumous gift).
The “second-generation” statutes follow the original Uniform Probate Code formulation that required that the “material provisions” be in the handwriting of the testator. The “material provisions” formulation was in the original Uniform Probate Code to permit a holographic will to be valid even though immaterial parts (such as the date or introductory wording) are printed, typed, or stamped. See Unif. Probate Code § 2-502 cmt. (amended 1990).
The “third-generation” statute is a revision of the original Uniform Probate Code which changes the requirement that the “material provisions” be in handwriting to state that “material portions” be in handwriting. Id. Although this distinction may seem slight, it is a response to the difficulty in handling holographic wills that were executed on printed will forms as may be found in stationery stores. Under the original Uniform Probate Code if a testator used a will form that had the printed language with the testamentary intent (e.g., “I give, devise and bequeath …”) and filled in the dispositional portions of the will form the testator had not provided the material provisions in his or her own handwriting. Shifting the requirement to material portions permits many holographic wills executed on printed will forms to be held valid. Thus, “[t]he fact… that the will form contains printed language such as ‘I give, devise and bequeath to ________’ does not disqualify the document as a holographic will as long as the testator fills out the remaining portion of the dispositive provision in his or her own hand.” Id.
Some jurisdictions will allow personal property and, rarely, real property, to pass under an oral or nuncupative will. A nuncupative will is one which is not written, but which is declared orally by the testator, in his or her last illness, and in contemplation of death, before a sufficient number of competent witnesses. 95 C.J.S Wills § 328. Nuncupative wills are not valid in some jurisdictions and, where they are valid, they are strictly controlled by statute. Id. D.C. and Virginia recognize nuncupative wills in limited circumstances. SeeRestatement (Third) of Prop.: Donative Transfers § 3.2. Maryland law does not recognize nuncupative wills and will not recognize nuncupative wills from another jurisdiction. See Md. Code Ann., Est. & Trusts § 4-104 (recognizing the legal validity of a will executed outside the state of Maryland provided it is in writing).
[1] A holographic will is, by definition, one which is handwritten by the testator. Black’s Law Dictionary (8th ed. 2004).
