If Kentucky allows Handwritten Wills, why should I formally draft my will / hire a lawyer to do so?
It is true that a will written entirely in the testator (will writer)’s own handwriting may be valid in Kentucky. This is known as a “holographic will.” However, the requirements for a valid will are specific and necessary to allow a will to be probated. KRS 394.040. They apply to wills drafted by lawyers and non-lawyers alike. Many laypersons prefer that a lawyer, well-versed in statutory requirements, draft and execute the document properly so as to minimize the possibility that the will be denied probate. Ultimately, a will is worthless unless it is done correctly.
Fulfilling the Will Drafter’s Intent
Laypersons often know who they want to receive particular items, but do not understand how to properly bring about that intention. For instance, a testator who wishes to provide for minor children may not realize that he or she must appoint a custodian over the property or put the property in a trust benefitting the children (and how to create a valid trust is a separate issue). Testamentary bequests can fail for a number of reasons, including the death or age of a beneficiary, problems with the ownership of the property, or even typos or vague terms.
Address All Issues
Without the advice of an attorney, testators often do not think to include certain common provisions. Examples include establishing who should be responsible for taxes, designating a guardian for your children, determining how the simultaneous death of you and your spouse can affect the distribution of your estate, and providing your executor additional powers.
Avoid Will Contests
Having a holographic will may serve fatal to your wishes in the event of a will contest. More than we would like to think, wills may result in hurt feelings, resentment, and dissatisfaction. Relatives left out of a will may seek to challenge it by arguing that you were not of sound mind when it was drafted. Evidence can include physical infirmity or illness, an unnatural distribution scheme, and even the document itself. In a will contest, poor grammar or messy handwriting can look like incapacity. For instance, in finding undue influence in a recent case, the Kentucky Court of Appeals remarked “the will itself could be viewed as evidence of her mental capacity” due to misspellings of the beneficiaries name and concluded that “[a] jury could reasonably conclude that absent some diminished mental capacity, a testator would properly spell the name of the sole beneficiary…” Rothwell v. Singleton, 257 S.W.3d 121 (2008).
Also, witnesses are not required for a valid holographic will. This may seem like a convenient feature, but the lack of persons able to identify you as the writer and testify to your sound mind breeds confusion.
Writing your will may be better than having no will at all, but it’s not the best way to plan. If you are taking the time and energy to determine how you want your estate distributed at your death, you want to ensure that you’ve taken every precaution to ensure that those wishes materialize. When drafting your will, a lawyer can avoid these pitfalls.