Last-Minute Holographic Wills in the Age of Revokable Living Trusts

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Estate planning attorneys today often encourage clients to use revocable living trusts over wills as the primary estate planning device. Will last-minute holographic documents be as effective to change an estate plan now as when the primary estate planning device was a will?

Jay Chafetz

Suppose a testator has an attorney draft a revocable living trust. He comes back to the attorney once for an amendment, but then, shortly before death, leaves a letter cutting out an heir. Whether this letter will be effective depends on a number of factors.

A revocable trust may be amended by the same means as it may be revoked. Prob. C. §15402. A revocable trust may be revoked:
“(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor. If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph.” Prob. C. § 15401 (a).

Probate Code Section 15401 (a)(2) might seem to imply that a holographic will cannot amend or revoke a trust. The case of Gardenhire v. Superior Court (2005) 127 Cal.App. 4th 882, 891-892, 26 Cal.Rptr.3d 143, 149-151 ruled to the contrary, however. Gardenhire held that section 15401 (a)(1) is an alternative to section 15401 (a)(2) and that if a trust says it can be amended by any writing, this includes a holographic will. The trust need not specifically say that the writing can include a holographic will.

Gardenhire does not provide the whole answer to the question of whether the last-minute document will be effective, however. The rest depends upon the specific facts regarding preparation of the document and whether the testator intended it to serve as a will, or only as a set of instructions for a new will to be prepared.

When clients relied mainly on wills to achieve their estate planning objectives, they could override a prior will by leaving a subsequent letter or other document if it met the requirements for a holographic will.[1] This could be the result even though the client did not know that holographic wills were valid or how to draft one.[2]

A line of authority provides, however that a document which is not itself intended to have testamentary effect but rather is only a set of instructions for preparation of a subsequent will is not a holographic will. For instance, in Estate of Kisling (1945) 68 Cal.App.2d 163, 156 P.2d 57, the court held that a letter to an attorney could not serve as a holographic will. The letter stated that the testator was seriously ill, felt he had not been fair to his nephew in a prior will, and wanted the nephew to have all of his personal property. He asked the attorney to come as soon as possible. The court affirmed the ruling of the trial court denying admission of the letter to probate on the grounds that for the letter to be a valid holographic will the decedent must have “intended by the very paper itself to make a disposition of his property . . .” The court said that the letter warranted the conclusion that it was not itself intended to make a disposition of the property but instead “was simply a request . . . to [the decedent’s] attorney that he come see her for the purpose of making a will.”[3]

Also in Estate of Beebee (1953) 118 Cal.App.2d 851, 258 P.2d 1101 a client wanted to change a prior, attorney-drafted will. There was evidence that the client would be afraid to change her will without consulting an attorney. She wrote a letter to her attorney asking about changing the will and then wrote a subsequent letter to her bank, saying that conditions had changed and she wanted to leave her entire estate to her son. She concluded the letter by saying, “Please help me either to add a new codicil or to make a new will.” The court held that the letter was not a valid holographic will. The court said that the bulk of the letter showed “at most it is a letter to the bank telling them how she wished to change her will but intending that the preparation of a codicil or new will was necessary before such intent could be effected.”[4]

Do such cases mean that a last-minute holographic document will never be effective to change the terms of a prior, attorney-drafted trust? Most clients probably view a trust as so complicated a document that it can be changed only by an attorney. Like the decedent in Beebee, they probably would not try to change it without an attorney’s help. A court could therefore always conclude that the decedent did not intend a subsequent letter itself to make a disposition of property because the client did not know he could change the trust on his own.

Nevertheless, there are competing lines of cases as well as public policy arguments that may support a finding under the facts of a particular case that a subsequent holographic document will be effective to amend or revoke a prior, attorney-drafted trust.

Public policy would seem to favor permitting testators greater, rather than less, flexibility in having their wishes carried out. Holographic wills have historically allowed such flexibility. Not all clients feel they have the money to return repeatedly to attorneys for amendments or restatements of their trusts, and others die too suddenly to have the opportunity. The primary purpose of the court is to carry out the wishes of the testator[5]. Giving effect to the holographic writing does this.

Further, there are various lines of cases that show the law has allowed flexibility where a testator’s intent was sufficiently clear.

A trust may generally be established as well as revoked without excessive formality. A trust may be created by a simple declaration of the owner that he holds the property in trust.[6]There is no requirement of any particular kind of writing, that the writing be witnessed, or that the testator’s signature be acknowledged.[7] Also, Probate Code section 15401 permits amendment or revocation of a trust by any writing, not necessarily only by a witnessed, formal, or attorney-drafted writing. See Fleishman v. Blechman (1957) 148 Cal.App.2d 88, 95, 206 P.2d 548, 552 (trust regarding real property could be revoked by any writing which clearly manifested intention to revoke and therefore was revoked by a lawsuit in which testator alleged that he held the property free and clear of any other interest; the complaint apparently did not even specifically refer to the trust); Gardenhire v. Superior Court, supra, 127 Cal.App. 4th at 888, 26 Cal.Rptr.3d at 147 (will executed after trust which stated it revoked all prior wills was also held effective to revoke a prior trust even though the will did not explicitly refer to the trust.)

Further, an instrument will be construed more liberally when it is written by an inexperienced or illiterate person than when it is written by a more sophisticated one.[8]

Courts have upheld holographic wills even when the testator contemplated signing a subsequently drafted formal will incorporating the provisions of the holographic will. See Estate of Brenner (1995) 76 Cal.App.4th 1298, 91 Cal.Rptr.2d 149 (testator apparently intended to execute formal will based on holograph, but failed to execute it properly; holographic document held to be valid will anyway); Estate of Sargavak (1950) 35 Cal.2d 93, 216 P.2d 850 (testator met with executor/attorney, gave him a letter, and said, “I want you folks to prepare and take care of my estate, my affairs, in the way that you know I want it. And whenever Lillian Shooshan ever gives any trouble, I want you to have this”; while this stated a request to “prepare . . . my estate” (evidently in the future) document still held to be valid holographic will.)

Various cases stand for the proposition that the law does not require anyone who has once hired a lawyer to draft estate planning documents to return to a lawyer to make any changes to the estate plan.[9]

In the presence of such competing arguments and lines of authority, the decision in any given case about whether to give effect to a last-minute holographic document becomes very fact specific. Did the testator leave the document among his own possessions or send it to an attorney or other third party? If he sent it, did he do so with instructions that it was his new will or with instructions that an attorney should use it as the basis for drafting a new will or trust? Most testators who hire attorneys to draft trusts probably do not realize that they can amend the trust on their own by means of a holographic will, but knowledge of the ability to draft an effective will without the help of an attorney was never a prerequisite for the validity of a holographic will in the past, so it can be argued it should not be one now either. In the age of extensive use of revocable living trusts difficult issues concerning the effectiveness of subsequent holographic documents can be expected to recur and to present a continuing challenge for litigants and the courts.


- Jay Chafetz practices in Walnut Creek, specializing in personal injury, medical malpractice, elder abuse, and trust and will contests. He is on the Board of Directors of Contra Costa County Bar Association and the Litigation Section.


[1] See Estate of Brenner (1995) 76 Cal.App.4th 1298, 91 Cal.Rptr.2d 149.
[2] See Estate of Wolfe (1968) 260 Cal.App.2d 587, 593 , 67 Cal.Rptr.297, 301.
[3] 68 Cal.App.2d at 168, 156 P.2d at 59.
[4] Estate of Beebee, supra, at 859, 258 P.2d at 1106.
[5] See Estate of Russell (1968) 69 Cal.2d 200, 205, 70 Cal.Rptr. 561, 564; Prob. C. § 15200 (a).
[6] Prob. C. § 15200 (a).
[7] See generally Prob. C. §§ 15200-15210; cf. Prob. C. § 4673.
[8] Estate of Wolfe (1968) 260 Cal.App.2d 587, 593 , 67 Cal.Rptr.297, 301.
[9] Estate of Sargavak, supra, 35 Cal.2d 93, 216 P.2d 850 (court permitted subsequent 6 holographic letter to amend formal, witnessed will); Estate of Brenner, supra, 76 Cal.App.4th 1298, 91 Cal.Rptr.2d 149 (same); Estate of Smilie (1950) 99 Cal.App.2d 794, 22 P.2d 692 (same); Estate of Fuller (1933) 135 Cal.App. 781, 22 P.2d 399 (same).

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