July 07, 2024

Advantages and disadvantages of a handwritten will without witnesses

Introduction

A handwritten will without a witness, also known as a holographic will, is a legal document by which a person expresses his wishes for the distribution of property after death, and it is drawn up by hand without the presence of witnesses. According to Croatian law, such a will must be fully written, dated and signed by the testator’s hand. This form of will is simple and economical, but it has its advantages and disadvantages to consider.

History and application in other legal systems

Holographic wills exist in many legal systems around the world, including civil and customary legal systems. Historically, this form of will allowed people who did not have access to lawyers to express their last wishes. In France, Germany, Switzerland and many U.S. states, holographic wills are a recognized form of will. Their historical application is based on convenience and accessibility, providing testators with an easy way to express their wishes.

Form of a handwritten will

In order for a handwritten will to be valid, it must meet several key elements:

  1. Handwriting: The entire will must be handwritten. The use of a typewriter or computer is not allowed.
  2. Date: The will must contain the exact date of drafting (day, month, year).
  3. Signature: The will must be signed by the testator. The signature is crucial for the validity of the document.
  4. Declaration of Will: A will must clearly express the testator’s desire for the distribution of assets after his death.

Advantages of a handwritten will

  1. Simplicity: Drafting a handwritten will does not require the assistance of a notary, making it accessible to everyone.
  2. No costs: There is no need to pay a notary or lawyer, which makes this type of will economical.
  3. Confidentiality: The testator can draw up a will in private, without the need for witnesses to be present.
  4. Speed: It can be put together quickly in emergency situations when an asset decision needs to be made quickly.

Disadvantages of a handwritten will

  1. Legal errors: A testator, who is not a lawyer, may make legal errors that may lead to the invalidity of the will or problems in its interpretation.
  2. Forgery: Without the presence of a witness or notary, a handwritten will is more susceptible to forgery.
  3. Loss or destruction: A physical will can be easily lost, damaged, or destroyed, which can make it difficult to execute.
  4. Unclear clauses: Due to a lack of legal advice, clauses in a will can be vague or contradictory, which can lead to disputes between heirs.

Case law

Case law in Croatia and other countries shows that handwritten wills are often the subject of disputes precisely because of the lack of witnesses and ambiguities in the text. However, courts are often prepared to recognise the validity of such wills if the basic conditions are met, and if there is no evidence of coercion, fraud or incompetence on the part of the testator.

Conclusion

A handwritten will without witnesses is a practical and economical way of expressing a last will, but it carries risks that need to be carefully considered. It is advisable, whenever possible, to consult with a will lawyer to avoid unnecessary legal complications.

If you are looking for a lawyer for wills, please contact us at:

info@odvjetnik-bistrovic.hr

Want to make an appointment?