It seems that it is always a good time to review this. The other day a client asked me if an elderly friend could “dictate” the terms of his will and then sign the transcribed document. In Tennessee, the answer is no.
Since 1941, the law in Tennessee has been that a will must be signed by the testator and two or more attesting witnesses who must sign as attesting witnesses in the presence of the testator and in the presence of each other.
The only significant exception to this is the holographic will which is defined in Pritchard on Wills and Administration of Estates (5th Ed.) as “a paper writing appearing to be the last will of a deceased person, all the material provisions of which are written in his own handwriting” and “the testator’s name must have been subscribed to it, or inserted in some part of.” There must be proof by at least two people that they recognize the deceased’s handwriting.
Note the important part – all the material provisions must be in the testator’s own handwriting. This is the part that seems to get so often overlooked in the age of word processing.
The bottom line is this – there is nothing wrong with someone writing their own will – but it must meet all of the requirements of a holographic will. If not, it is completely void. People have occasionally said to me that they don’t mind the document being void as long as it expresses their intent, but this is meaningless. If you die without a will your property passes by the laws of intestate succession—which may or may not be what you intended. In this era of online will kits and the like, the crucial distinction between a holographic will, a properly attested will and a legally void document often gets overlooked. This is one of those important times when it just makes good sense to review the terms of the will with an attorney and have them handle both the preparation and execution of the document itself.