Last month, Stacey wrote a blog post about how an email is not a will in which she discussed the court battle among Anne Heche’s family members over the late actress’s estate. In Washington, there is no question as to whether an email written alone and sent to a single recipient is a will. It is not. Washington law, at RCW 11.12.020, requires every will to be in writing, signed by the testator, and attested by two or more competent witnesses. While electronic wills are excepted from the RCW 11.12.020 requirement that a will be in writing, RCW 11.12.440(1) still requires that an electronic will be “a record that is readable as text at the time of signing” and that it be signed by the testator and by at least two competent witnesses in the testator’s physical or electronic presence.

In the Heche probate, it is possible that the party attempting to have the email admitted as her will might have argued that the email qualified as a holographic will. A holographic will is a will that is written, dated, and signed in the testator’s handwriting. Washington law does not recognize holographic wills. California law, however, does. In California, a holographic will may be admitted to probate, even where the will was not witnessed, if the will is in the handwriting of the testator and signed by the testator.

In Washington, a will that does not meet the requirements that it be in writing and signed in the presence of two or more competent witnesses may still be admissible to probate, provided it was not executed in Washington. Washington law recognizes as valid any will that was executed in a manner consistent with the laws of the jurisdiction where it was signed. RCW 11.12.020 provides that “a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator’s domicile, either at the time of the will’s execution or at the time of the testator’s death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state.” In addition, if a will is admitted to probate in another jurisdiction, RCW 11.20.090 provides for admission of that will to probate in Washington, “on the production of a copy of such will and of the original record of probate thereof, certified by the attestation of the clerk of the court in which such probation was made; or if there be no clerk, certification by the attestation of the judge thereof, and by the seal of such officers, if they have a seal.”

That brings me back to the question of whether a handwritten will is valid in Washington. It is not. That is, a handwritten will that was signed in Washington without the requisite witness signatures is not valid. However, there are circumstances where a handwritten will could still be admitted to probate in Washington, such as when the handwritten will was executed in a jurisdiction that recognizes holographic wills, like California, or where the will has been admitted to probate in another jurisdiction. Handwritten wills are not a good idea, for many reasons. However, if you come across a family member’s handwritten will and have a question about whether it could be valid, it is worthwhile to have a discussion with an attorney. Have questions about probate? We’re happy to chat.

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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