Understanding Wills

by Sheryll Bonilla, Esq.

A will is a document containing the directions a person has for who gets what property the person owned while alive. A testator (male) or testatrix (female) is the person who made the Will. The beneficiaries are the people who receive the assets. If a person dies without a will, the person is called intestate. The recipients who receive assets under the intestacy laws are called heirs.

Can’t I just write my own will?
Hawaii law allows a person to write a will in her own handwriting. This is called a holographic will. The directions for who gets what must be in the person’s handwriting.

Save money by not having to go to a lawyer? Yes, but the difficulty comes when the will is probated. There must be sufficient proof that the testatrix actually wrote the will.

Handwriting samples to show that the Will is in the testatrix’s handwriting have to be reliable and enough for the court to be satisfied that this Will was actually written by the testatrix.

The person testifying as to the authenticity of the Will cannot and should not be someone who is going to receive the property because that calls into question the Will’s authenticity.

What if I wrote my will in another state?
This hitch we see from states that do not require notaries or witnesses. California doesn’t require notarization, which California attorneys feel is better than Hawaii’s notarization requirement. I think Hawaii’s system is better because it might be easier to fake a Will if the “witnesses” are in cahoots with someone who pretends to be the testatrix.

A notary checks the identity of the persons signing a document, meaning the Court can rely on the notarization to know the actual testatrix signed the document. For states that require only two witnesses but no notarization, the two witnesses have to be tracked down and sign an affidavit that they actually witnessed the testatrix signing the will. Try doing that when the will was made years ago and the witnesses have died. Or the other states could require a notarization but no witnesses.

If the Will is going to be probated in Hawaii, the Will has to satisfy Hawaii requirements – (1) signed by the testatrix, (2) witnessed by two persons who are not receiving anything in that Will, and (3) notarized to show all the signers are actually who they sign that they are.  If the out-of-state Will doesn’t meet these requirements, the person is deemed to not have a valid Will in our state.

What if I change my mind?
You can change your mind up until you lose mental capacity or die. You can either write a codicil, which keeps most of the Will intact but changes something, or you can revoke the prior Will and write a new one. This also applies if the situation has changed over the years.

The testatrix may have divorced and doesn’t want her former spouse to be her personal representative, or the originally named personal representatives have died, the beneficiaries may have died, or the testatrix simply wants to change or add beneficiaries such as when they have children born after making the Will.

Mental capacity is required
That’s a common allegation heard in probate court – that the testatrix didn’t have mental capacity.

Sometimes a Will gives what the beneficiaries feel is an unfair share to another beneficiary, and those beneficiaries will say the one receiving more took the parent to a lawyer to give it all to him or her when the parent had dementia. Sometimes that change happens when the testatrix gives her property to the caregiver.

Lawyers can’t write a will for someone who lacks mental capacity. If the lawyer feels comfortable that the person is legally competent to make a will but the situation seems like a contested will situation might arise, then videotaping the will execution can help.

The lawyer can start the tape with a question and answer session to show the testatrix understands who she is, where she is, what she intends to do with her will, who her “natural bounty” is (the people one normally expects would receive her assets), what property she has, and who will get it, and explain her reasons for why she is making the gift.

It may be that the child who gets the house is the one who stayed home and took care of the testatrix in her old age. It could be that the ones “cut out” are druggies or gamblers or blow all their cash. The testatrix can explain so that the court can see that she is not being pressured to make the Will and understands what she is doing.

Can the witnesses be my kids?
If your kids are inheriting, then no. The witnesses cannot be anyone who will receive any of the property or is named as a personal representative. The witnesses have to be disinterested persons. They can be your friends or in-laws or anyone who will not receive under the Will.

What happens if I didn’t make a new will after the divorce?
Any provisions relating to the former spouse are revoked by law. For example, if the former spouse was named as the personal representative, that person is out, and the alternately named personal representative gets appointed. If all the property was going to the former spouse, that gift is void, and the contingent beneficiaries now get the assets.

What if I have other children after I write my will?
Many Wills are written to accommodate after-born children. For example, the language might say: “Any children born to me after I execute this Will shall also be my beneficiaries and this Will is deemed modified to include them.” Or you can update your Will by codicil or making a brand-new Will.

What if I marry again after I made my will?
You can write a codicil or make a new Will.

What if I want to disinherit one of my children because they’re rotten to me?
You can do that. The lawyer has to write in the specific disinheritance, so the court knows who is being left out. There’s no requirement that you have to give a disinherited child anything, as is commonly believed.

What if we can’t find someone’s will or the whole will when it’s time to probate it?
Sometimes a Will is so old or the papers got scattered over the years so that only a few pages of the Will can be found, but not the whole Will. The person may be deemed to have died without a Will because the Court can’t tell what the intended distribution was. Beneficiaries often claim that the decedent told them they’d get the house, but without a Will, the intestacy laws apply.

The court requires efforts to locate a will
The Court requires the family to make the effort to find the decedent’s Will. If the family does not submit a Will to be probated, there has to be a sworn statement stating all the efforts that were made to look for that Will and that one wouldn’t be found.

Let your family know where your will is
If you keep it in a “safe place” and let them know where it can be found, that helps your family in the probate process.

This article is for informational purposes only and is not to be constructed as offering legal advice. Please consult an attorney for your individual situation. The author is not responsible for a reader’s reliance on the information contained here.