On June 8, 1948, a Canadian farmer was pinned beneath his tractor.  He was discovered 9 hours after the accident and rushed to the hospital, where he later died.

A few days later, it was discovered that the farmer had scratched his Will into the fender of the tractor using his pocket knife. He had written, “In case I die in this mess, I leave all to the wife.” The fender was later removed and submitted to the Canadian court as a valid holographic Last Will and Testament.

What is a holographic will? The definition of a holographic Will, is a will and testament which has been entirely handwritten and signed by the testator.  In the document, the testator (the author of the Will) must be expressing a wish to direct the distribution of his or her estate to beneficiaries.

Although the law in Massachusetts does allow handwritten wills, the Will etched by the farmer onto his tractor fender would not have been valid in Massachusetts as it was not executed with the legal formalities required by Massachusetts statutes.

Normally the task of drafting a will is best accomplished by a lawyer for wills and trusts, but when it is not, certain requirements must be met for a will to be legal in Massachusetts. A Last Will and Testament is a document that allows you to determine who will manage your estate at your death, who will inherit your assets, how and when your assets will be distributed, whether assets will be placed in trust, and who will care for your minor children. It is important to draft a will to ensure that your wishes are known and legally acknowledged. Without a Will, the laws of your state will decide who may manage your estate, who will inherit your assets, and how and when your assets will be distributed.  This may not align with your intentions so we do not recommend relying on what is called the “Intestacy Statute” of your state.

In Massachusetts, there are several requirements for a Will to be valid:

1. The will must be in writing. This could include handwriting, but generally they are typed.  Massachusetts does recognize nuncupative (oral) wills but only if made by a person who is in active military service or a mariner at sea.  The oral Will may only be created in order to dispose of personal property.  Real property cannot be transferred through a nuncupative will.

2. The will must be signed and dated by the Testator (the person making the will).  If the Testator is not able to sign, someone else can sign on the testator’s behalf at the direction of the Testator and in his presence.  This person cannot be one of the witnesses.

3. The will must be signed by two disinterested witnesses. Disinterested means they are not beneficiaries or potential beneficiaries of the will.  In Massachusetts, a person of “sufficient understanding” shall be deemed competent to be a witness to a Will. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance of such will.

If a Will is witnessed by an “interested person” the Will itself is not deemed to be invalid but the gift/bequest to the interested party and/or his or her spouse is deemed to be void.

4. The person making the will must have the mental capacity to do so. This is often called “testamentary capacity.”  More specifically, the following must be true:

• • The testator must be at least 18 years old;
  • The testator must be free of undue influence or duress;
  • The testator must know he is signing his will and intends to do so;
  • The testator must have read, or have an understanding of the provisions of the will; and,
  • The testator must be of “sound mind” which generally means he knows ‘the natural objects of his bounty’ (i.e. who his family is) and has a general understanding of the nature of his assets.

5. A handwritten will signed by the testator that meets all of the above requirements can be valid under Massachusetts law. So, in a sense, one might say that Massachusetts does permit handwritten wills or holographic wills but only if the Will was executed with the formalities outlined above.

Although a fender of a tractor might be a unique place to inscribe your final wishes, we would prefer that you work with your estate planning attorney to draft your will and reduce your wishes to plain old paper, and to ensure that the writing of your will is executed properly and in accordance with the legal formalities of the Massachusetts statutes.

This article is from the estate planning and elder law firm of Samuel, Sayward & Baler LLC, based in Dedham.  For more information, visit www.ssbllc.com or call (781) 461-1020. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.

June 2020

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