Most everyone knows that a Will is a legal document that gives instructions on what happens to your property after you pass away. However, what makes a Will a Will? Fundamentally, it boils down to the testator's intent, but proving intent is sometimes a tricky (and expensive) proposition. Fortunately, Hawaii law provides guidance in the form of elements that should be met if a document or writing is to be considered a Will. If these elements are fulfilled, the court should have an easier time determining the testator's intent and concluding that the document was the testator's Last Will and Testament. Of course, there are exceptions to these requirements, but generally speaking there are four basic elements that should be met:
Requirement #1: A person must be eighteen years or older and be of sound mind. There is no exception to this requirement. (Hawaii Revised Statutes Section 560:2-501)
Requirement #2: The Will must be in writing. (Hawaii Revised Statutes Section 560:2-502(a)(1))
Requirement #3: The Will must be signed by the testator OR by someone else in the testator's conscious presence and as directed by the testator. (Hawaii Revised Statutes Section 560:2-502(a)(2))
Requirement #4: The Will must be signed by at least two other individuals who witnessed the testator sign the Will OR the individuals must have witnessed the testator's acknowledgement of the signature or the acknowledgement of the Will. (Hawaii Revised Statutes Section 560:2-502(a)(3))
What if the testator failed to have two people witness the signing of the Will? Perhaps the testator only had one person serve as a witness. Well, Hawaii Revised Statutes Section 560:2-502(b) states that a Will is still valid as a "holographic will" if the signature and material portions of the Will are in the testator's handwriting. This is true even if no one witnesses the testator writing, signing or acknowledging the Will. For the portions of the Will that are not in the testator's handwriting, extrinsic evidence can be used to establish that it was intended to be part of the Will.
What if one or more of the requirements spelled out under Hawaii Revised Statutes Section 560:2-502(a) aren't met? Say a person just left a piece of paper stating "I leave all my property to Joe the Plumber." In that instance, Hawaii law provides a "catch-all" exception in the form of Hawaii Revised Statutes Section 560:2-503. Hawaii Revised Statutes Section 560:2-503 basically says that a document or writing will be treated as a Will if it can be proven, through clear and convincing evidence, that the decedent intended the document or writing to be a Will. This opens the door for people to bring whatever evidence they have and attempt to convince the court that a document or writing was intended to be a Will. While it may be comforting to know that this "catch-all" exception exists, you don't want to put your intended beneficiaries in that position or situation because such an endeavor would surely be an uphill battle and require additional time and attorneys' fees.
The stress and expense of having to prove that a document or writing is a person's Will can usually be avoided by completing what is a called a "self-proved will". In Hawaii, a "self-proved will" can reduce the time spent in probate by helping the court more easily conclude that the document presented is indeed the decedent's Will. The requirements for a "self-proved will" is outlined in Hawaii Revised Statutes Section 560:2-504(a). For a "self-proved will", all the requirements of Hawaii Revised Statutes Section 560:2-502(a) that were mentioned above should be met including these additional elements:
Requirement #5: The Will must be simultaneously executed, attested to and acknowledged by the testator in front of an officer authorized to administer oaths (such as a notary public).
Requirement #6: The witnesses must attest and acknowledge in the presence and hearing of the testator and before an officer authorized to administer oaths that they witnessed the testator (or someone directed by the testator) sign the Will.
Also, according to Hawaii Revised Statutes Section 560:2-504(b), an attested Will (which is a Will that has been properly witnessed) can be made a "self-proved will" after its execution by having the testator and witnesses sign affidavits in front of an officer authorized to administer oaths and attaching them to the Will.
As you can see, while it can be argued that a document or writing which falls short of the Hawaii statutory requirements for a Will is in fact a person's Will, there are simple steps that can be taken to help the court establish the validity of a Will and to avoid long, protracted delays in probating a Will.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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