21st Sep 2020
This post continues the topic of the law few posts: why does the law require most forms of wills to have witnesses, but the law does not require witnesses for handwritten or holographic wills?
The last post looked at the issue of identity. It appears the logic of the holographic will is that those left behind should be able tell whether the person they knew well, if fact, wrote the document left behind. Or if not, a handwriting expert or other scientific person can provide assurance. The handwriting is something of an identification confirmation. The post looked at some difficulties in this area, using the Aretha Franklin and Thomas Kinkade estates as a couple of famous examples.
This post addresses the issue of capacity. It appears the logic of the holographic will is that those left behind should be able to tell from the written document left behind whether it was in the person’s normal style (indicating sound mind) or whether it was out of their normal style (indicating incapacity).
Oklahoma law itself illustrates that this can be difficult at times. For example Oklahoma law allows persons under guardianship to execute a will, under Court supervision.
Without getting deep into the specifics, before a Judge can issue a guardianship order, there must be a level of mental or physical problems that put the physical safety or financial resources of a person at risk. Many times in a guardianship the situation has deteriorated to the point that a ward (person under guardianship) would clearly not have the capacity to execute a will or other legal documents.
However, Oklahoma law allows for a set of circumstances that even a person under guardianship can execute a will. It tries to put some safeguards in place by requiring the ward to subscribe and acknowledge the will in the presence of a Judge.
These provisions of Oklahoma law illustrate that the the line of capacity between being able to execute a will and not being able to execute a will is not always a bright, clear line. Witnesses, whether a Judge or an attorney or otherwise, are certainly not foolproof in addressing these concerns. But it appears neither would a person’s handwritten will always be the full story and final answer.