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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