We have written before that businesses do not necessarily have to have written contracts to form a binding contract. If a customer verbally offers to pay you $200 to do X, and you verbally agree to do X for $200, you may have a binding contract. To form an oral contract, there must be an offer, an acceptance, and mutual assent. This last requirement, also called “meeting of the minds,” means that you both agree to the terms of the contract – which can be tricky if the contract is not written down.
Even though oral contracts are valid, we always recommend contracts in writing because (1) then there is proof that the parties contracted with each other, other than just two people’s versions of the truth, and (2) there are oftentimes many more terms and conditions other than X and the price that need to be included in the contract. What time does X have to be completed? When is payment due? Inclusions/exclusions? For example, if X is painting a house, does the painter include white paint on the front porch railings but exclude the stain on the wood deck?
If you and the customer are not on the same page and do not have a “meeting of the minds” as to these terms, there can be no contract. However, if you hand your customer a piece of paper with terms and conditions written on it, that is simply an offer (or a counteroffer to their offer). How do you know the agree to the terms? This is why people get their customers to sign it, which acknowledges that they agree to the terms (even though a signature is NOT a legal requirement to form a contract).
For a lot of our clients, written contracts and signatures just aren’t practical. The house painter is going to want the homeowner client to agree to the terms and conditions BEFORE the painter buys supplies and drives out to the house, for example.
These days, everyone has e-mail. A lot of our clients are already utilizing e-mail to send their customers appointment reminders and quotes. Why not incorporate terms and conditions into the email? To legally guarantee that those e-mailed terms are incorporated into the contract, the customer would need to take some affirmative step to acknowledge that they’re agreeing to it. They could hit reply to the e-mail and say they agree to everything, you could include a way for them to electronically sign a document, or you could utilize software that allows the customer to click “I agree” or “I disagree” to the terms. This latter example is called “click-wrap” and technology companies like Apple have been using it for years to get consumers to agree to their terms of service. Click-wrap contracts are universally upheld as long as some procedures are put in place, like allowing the customer to click “I disagree,” putting the terms and conditions near the “I agree” button, and allowing the customer to download or print the terms of service.
Putting all the terms of the contract in writing helps to avoid confusion between the parties and prevent potential lawsuits if customers become unhappy. Please keep Jesson & Rains in mind if you or a colleague needs assistance drafting a click-wrap contract or other terms and conditions.
We do not normally write blog articles analyzing boring court opinions, but this case involves something that thousands of people do every year – handwrite notes or changes onto their typewritten wills!
North Carolina law permits amendments to wills, called codicils. This allows a person to make a small change to a will without having to re-do everything. In order to be a valid codicil, whether typed or handwritten, the codicil must be executed with the same formalities as the will and the change must be effective immediately.
In North Carolina, a handwritten will (also called a holographic will) can be valid if it is:
(1) Written entirely in the handwriting of the testator but when all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator, and not affecting the meaning of the words in such handwriting, shall not affect the validity of the will, and
(2) Subscribed by the testator, or with the testator's name written in or on the will in the testator's own handwriting, and
(3) Found after the testator's death among the testator's valuable papers or effects, or . . . in the possession or custody of some person . . . for safekeeping.
Over the years, North Carolina courts have held that in some circumstances, an addenda to a typewritten will made in the handwriting of the decedent may be valid. In one case, for example, the decedent simply added provisions to the end of her typewritten will that could stand alone without having to use the typewritten words for reference. If the typewritten words “are essential to give meaning to the words used, the instrument will not be upheld as a holograph will.” An easy way to think about it is whether the handwriting is an addition to the will or if it changes something that is already in the will – if the latter, the handwriting will not be valid.
In the Matter of the Will of James Paul Allen, COA 16-1209, the North Carolina Court of Appeals held that Mr. Allen’s handwritten notes on his typewritten will were not valid. Mr. Allen executed a valid, typewritten will in 2002. At some point, Mr. Allen handwrote on the will “Beginning 7-7-03 do not honor Article IV Void Article IV James Paul Allen” (absence of punctuation in the original). Article IV happened to leave real estate to Mr. Allen’s girlfriend’s granddaughters. All the rest of Mr. Allen’s property was left to his family.
Mr. Allen died in 2014. Mr. Allen’s family probated the will as a holographic will. The girlfriend’s granddaughters challenged the validity of the holographic will. They claimed that, while the typed will was valid, the handwriting did not meet the requirements of a holographic codicil.
The court ruled in the granddaughters’ favor and held that the handwriting was not a valid holographic codicil for two reasons: First, the writing said “beginning 7-7-03” but there was no evidence that the handwriting was made on that date. If Mr. Allen wrote “beginning 7-7-03” back in 2002, it would not be valid because a codicil requires a present disposition, not a future disposition. Second, the court held that the handwriting was not valid to change the will because it did not stand alone. In order to understand the handwriting, the Court had to refer back to typewritten Article IV. If the typewritten words “are essential to give meaning to the words used, the instrument will not be upheld as a holograph will.”
This opinion is sad because I am fairly sure Mr. Allen did not want the girlfriend’s granddaughters to have that property, but because he did not make that change correctly, his real estate has now left his family. If you need to make changes to your will, please go see an attorney to have it done correctly.
 When the will is admitted to probate, witnesses have to testify that the handwriting is, in fact, that of the decedent and about the location of the will at the time of the decedent’s death. This will cost the family time and money, and there is always a chance that it will not be held to be valid, so we always recommend a typewritten will.
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