9.0 Holographic Wills/Revocation of Wills

9.1 Holographic Wills
9.2 Revocation

9.1 Holographic Wills

Maryland Estates and Trusts Article § 4-103 provides for the validity of holographic wills⁵ in the limited circumstance of a testator who is serving in the Armed Services provided: (i) that it is signed somewhere outside of: a state of the United States; the District of Columbia; or a territory of the United States; and (ii) that such holographic will is void after one year after the discharge of the testator from the Armed Services unless the testator dies prior to the expiration of the one year or does not possess testamentary capacity at any time after the expiration of one year. A holographic will made outside of Maryland will be held valid if the will is in writing and signed by the testator provided it is valid under the law of the domiciliary state of the testator or in the place where the will was executed. Md. Code Ann., Est. & Trusts § 4-104.

Not surprisingly, Maryland will give full effect to any authenticated record of probate in a sister state. Roach v. Jurchak, 182 Md. 646 (1944). Additionally, Maryland courts will apply the law of a sister jurisdiction to determine whether a holographic will is valid for purposes of distributing Maryland property. In Wright v. Nugent, 23 Md. App. 337 (1974), aff’d, 275 Md. 290 (1975), the issue was the efficacy of a holographic will executed by a domiciliary of the District of Columbia in Virginia. The decedent owned real estate in Talbot County, Maryland. The court in Wright held that when the situs of property of a decedent is in Maryland, his properly executed will may be admitted to probate in Maryland. A properly executed will is one that is executed in conformity with the law of the place where it was executed, and according to an affidavit submitted to the court, the holographic will conformed to Virginia law.

Many states have authorized holographic wills by statute. According to Restatement (Third) Property: Donative Transfers § 3.2(a):

"Holographic will formality has evolved through three phases:

•    Typical first-generation holographic-will statute. 'A holographic will is one that is entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and need not be witnessed.'

•    Second-generation holographic-will statute - Original Uniform Probate Code. 'A will, which does not comply with [the requirements for an attested will] is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.'

•    Third-generation holographic-will statute - Revised Uniform Probate Code. 'A will that does not comply with [the requirements for an attested will] is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting'."

Accordingly, Maryland courts may be called upon to interpret the law of various jurisdictions regarding holographic wills. The "first-generation" statutes required that all of the provisions be handwritten. A wholly handwritten will was recognized as reliable as one following formal attestation provisions. In application, however, many wholly handwritten holographic wills were found to be drafts that did not match the intended Last Will and Testament of an individual. Although the handwriting provides superior evidence of genuineness, an entirely handwritten will does not have the evidentiary values associated with having attesting witnesses observe and participate in the execution of a final will. These evidentiary witnesses can provide protection for the testator to assure that the will was not a product of coercion and to establish that the testator had capacity. See, e.g. Kimmel Estate, 123A 405 (Pa. 1924) (holding that an informal, personal letter to decedent's children was intended to bestow a posthumous gift).

The "second-generation" statutes follow the original Uniform Probate Code formulation that required that the "material provisions" be in the handwriting of the testator. The "material provisions" formulation was in the original Uniform Probate Code to permit a holographic will to be valid even though immaterial parts (such as the date or introductory wording) are printed, typed, or stamped. See Unif. Probate Code § 2-502 cmt. (amended 1990).

The "third-generation" statute is a revision of the original Uniform Probate Code which changes the requirement that the "material provisions" be in handwriting to state that "material portions" be in handwriting. Id. Although this distinction may seem slight, it is a response to the difficulty in handling holographic wills that were executed on printed will forms as may be found in stationery stores. Under the original Uniform Probate Code if a testator used a will form that had the printed language with the testamentary intent (e.g., "I give, devise and bequeath ...") and filled in the dispositional portions of the will form the testator had not provided the material provisions in his or her own handwriting. Shifting the requirement to material portions permits many holographic wills executed on printed will forms to be held valid. Thus, "[t]he fact... that the will form contains printed language such as 'I give, devise and bequeath to ________' does not disqualify the document as a holographic will as long as the testator fills out the remaining portion of the dispositive provision in his or her own hand." Id.

Some jurisdictions will allow personal property and, rarely, real property, to pass under an oral or nuncupative will. A nuncupative will is one which is not written, but which is declared orally by the testator, in his or her last illness, and in contemplation of death, before a sufficient number of competent witnesses. 95 C.J.S Wills § 328. Nuncupative wills are not valid in some jurisdictions and, where they are valid, they are strictly controlled by statute. Id.  D.C. and Virginia recognize nuncupative wills in limited circumstances. See Restatement (Third) of Prop.: Donative Transfers  § 3.2. Maryland law does not recognize nuncupative wills and will not recognize nuncupative wills from another jurisdiction. See Md. Code Ann., Est. & Trusts § 4-104 (recognizing the legal validity of a will executed outside the state of Maryland provided it is in writing).

9.2 Revocation

Estates and Trusts Article § 4-105 provides that a will, or any part of a will, may be revoked only under four circumstances:

(1) Subsequent will. -- By provision in a subsequent, validly executed will which (i) revokes any prior will or part of it either expressly or by necessary implication, or (ii) expressly republishes an earlier will that had been revoked by an intermediate will but is still in existence;

(2) Destruction. -- By burning, cancelling, tearing, or obliterating the same, by the testator himself, or by some other person in his presence and by his express direction and consent;

(3) Subsequent marriage and issue. -- By the subsequent marriage of the testator followed by the birth, adoption, or legitimation of a child by him, provided such child or his descendant survives the testator; and all wills executed prior to such marriage shall be revoked; or

(4) Divorce or annulment. -- By an absolute divorce of a testator and his spouse or the annulment of the marriage, either of which occurs subsequent to the execution of the testator's will; and all provisions in the will relating to the spouse, and only those provisions, shall be revoked unless otherwise provided in the will or decree.

Section 4-106 provides: "If a testator makes a subsequent will intended to revoke a prior will, the destruction or other revocation of the subsequent will does not revive the prior will unless the will is still in existence and is republished with the same formalities as are required for the execution of a will [in accordance with § 4-102]." The revocation of a will, in contrast to the invalidation of a will due to incompetency or some other factor, does not revive an earlier will. Under limited circumstances, however, the doctrine of dependent relative revocation may resurrect the earlier will. Arrowsmith v. Mercantile-Safe Deposit and Trust Co., 313 Md. 334 (1988) (holding that the doctrine of dependent relative revocation did not apply).

In Veditz v. Athey, 239 Md. 435 (1965) the court demonstrated that a will may be revoked by a subsequent will or codicil. In that case, the testatrix gave her niece one-half of her interest in a piece of residential real property after execution of her will. In the second codicil to her will she bequeathed her remaining interest in the property to the niece. Later, in a third codicil, the testatrix revoked and replaced the specific article bequesting the remaining interest in the property. In the third codicil, the testatrix substituted language bequesting personal property contained in the property to her niece but leaving no instructions regarding the property itself. At trial, the niece presented testimony of her aunt's intentions and argued for a construction of the will and codicils that would have completed the gift of the property to her; however, the niece’s efforts were to no avail. The court enforced the specific language of the third codicil which revoked and replaced the language of a second codicil. The niece ultimately received one-half of the residential property and the remainder beneficiaries the other half. The court, noting that the language had been drafted by an experienced attorney, stated:

"The law assumes that when a testator expressly revokes a clause in his will...he is doing what his words clearly imply – revoking the clause in its entirety, as it stood, with all the intermediate changes, at the time of revocation. To hold otherwise would impose a new and unnecessary burden in the drafting of wills and codicils and might well cast doubt upon testamentary documents which death has made final."

Id. at 444.

Maryland law permits a will to be revoked by the testator through the personal act(s) of burning, cancellation, tearing or obliteration. Md. Code Ann., Est. & Trusts § 4-105(2). "The absence of a will raises a presumption that it has been destroyed by the testator animo revocandi, but the presumption is rebuttable." Tilghman v. Bounds, 214 Md. 533, 537-8 (1957). In Tilghman v. Bounds, a carbon copy of the will was allowed to be admitted because the original will could not be found and there was evidence that the original will was not in the hands of the testatrix at the time of her death. Indeed, in Tilghman, the original will was traced to the possession of heirs who would not have benefited from the will. Under such circumstances, the court found that the presumption of revocation was rebutted.

In circumstances where the will is presumably marked up by the testator a determination must be made as to whether the changes were done with an intention to revoke the will: "Revocation requires an act, sufficient under the provisions of the Code, and an intention to revoke, and while, where the intention is clear, slight acts of cancellation or obliteration may be sufficient to constitute a revocation, an intention to revoke cannot be presumed from acts that are in themselves incomplete and inconclusive, and that are as readily accounted for in some other way." Safe Deposit and Trust Company of Baltimore v. Thom, 117 Md. 154, 163 (1912). In Thom, the testatrix requested that her original will be mailed to her by her attorney who had previously retained possession. The will was found at her death with instructions to the attorney in an envelope; these instructions were sealed and addressed to the attorney. Parts of the instructions were rubbed out and some of the letters were retraced by lead pencil, but no part was entirely obliterated or rendered illegible. She had also made notations on the will directly. The court was thus tasked to determine whether her markings constituted a revocation. The Orphans' Court found that the will had been canceled and revoked by the deceased and refused probate of the will. On appeal, the Court of Appeals reversed.

The Court of Appeals held that if an intention to revoke a will is not fully consummated such intentions do not constitute a revocation. Under the facts of Thom, the court found that the deceased "had no idea of dying intestate.” Id. at 166. The testatrix had no intention of revoking her will by the markings and erasures; rather, she intended that those markings and erasures would assist her attorney in preparing a new, modified will reflecting her modified wishes. She had not intended to revoke the old will by her acts. “Here all that the evidence shows is that what was done must have been done for the sole purpose of indicating to the attorney of the deceased that the item slightly rubbed was not to be included in the new will.” Id, at 168. This is distinct from an intention to revoke. Thom also demonstrates that a testator may revoke a clause in the will without invalidating the remaining clauses provided that the revision would not change the character of the other provisions.

A divorce will invalidates provisions to the former spouse. Md. Code Ann., Est. & Trusts § 4-105(4). This rule only applies to probate dispositions. Id. In a number of Maryland cases, the court was forced to determine the effect of a divorce and/or a separation agreement on non-probate beneficiary designations. These cases arise where the decedent is divorced from his or her spouse yet fails to change the beneficiary designations. Such cases involve an interpretation of the divorce decree and/or separation agreement because § 4-105 does not apply in non-probate transactions. In Cassiday v. Cassiday, 256 Md. 5 (1969), the decedent failed to change the beneficiary designation from his former wife. The separation agreement did not specifically address insurance policies but provided: "The wife hereby covenants and agrees that all the personal property now in the possession of the husband shall be his sole and separate property." Id. at 7. In a fight between the former wife and the widow over the proceeds of the insurance policies, the widow argued that the former wife lost her rights to be named as beneficiary as a result of this personal property clause. The Court of Appeals disagreed and held that the separation agreement did not extinguish the former wife's rights as a named beneficiary: "[U]nquestionably he could have changed the beneficiary...if he had so desired and as he did in the other life insurance policies. There is nothing in the separation agreement which precluded [the former spouse] from receiving money...as a beneficiary, designated by the husband, in his life insurance policies." Id. at 12.

In PaineWebber, Inc. v. East, 363 Md. 408 (2001), the court reviewed a separation agreement which included a "pension waiver" whereby the former spouse gave up her right to "participate as a payee or beneficiary regarding any interests the other [spouse] may have...in any pension plan, profit-sharing plan, or any form of retirement or deferred income plan ..." Id. at 415. Based on the beneficiary designation, the court held that the pension waiver language was not sufficient to preclude the former spouse from being the recipient of the decedent's IRA. The court found that the pension waiver reserved the decedent’s right to change the beneficiary prior to his death. The Court of Appeals upheld the Court of Special Appeals’ argument that a waiver of the IRA could not be effectuated by the pension waiver because the ex-spouse had no property interest in the IRA at the time the waiver was executed. Rather, at the time of execution, the ex-spouse had an expectancy in the IRA; the ex-spouse had hope of property interest in the IRA but did not have an actually property interest. This holding suggests that if the decedent had not wished for his ex-wife to receive the IRA he should have changed the beneficiary designation during lifetime.

In certain circumstances federal law may change the result a case of this nature. For example, applicable ERISA provisions trump state laws which affect a spouse's rights in the pension plan. Boggs v. Boggs, 520 U.S. 833 (1997). Thus, in a situation where a former spouse remains as the designated beneficiary of an ERISA plan but the decedent had remarried, federal law may dictate that the new spouse receive the benefit regardless of the designation.

Uniform Probate Code § 2-804 expands the revocation by divorce to non-probate dispositions. This expansion treats divorce as reversing any revocable designation to the former spouse made prior to the divorce on any instrument under which the divorced individual, at the time of the divorce or annulment, was alone empowered by law or under the governing instrument to change the designation. "The revisions expand the section to cover 'will substitutes' such as revocable inter vivos trusts, life insurance and retirement-plan beneficiary designations, transfer-on-death accounts, and other revocable dispositions to the former spouse that the divorced individual established before the divorce (or annulment)." Id. at cmt. The estates and trusts lawyers of the Maryland State Bar Association have periodically attempted to expand divorce-related revocation provisions to include certain non-probate transfers. For example, in the 2001 General Assembly, MSBA lobbied for House Bill 1111, providing that divorce would revoke provisions relating to the former spouse for a revocable trust used as a will substitute. The General Assembly failed to enact the Bill.