Bennardo Initiates Amendment to North Carolina Holographic Will Statute

In 2019, Kevin Bennardo, clinical professor of law, authored “The Location of Holographic Wills,” published in the North Carolina Law Review. Bennardo then submitted a proposal to the North Carolina Statutes Commission to amend the state’s holographic wills statute in a way that makes it easier for North Carolinians to create holographic wills. Fast forward to the summer of 2021, the North Carolina General Assembly signed that proposal into law.

A holographic will is an informal, handwritten will that does not require witnesses. The General Assembly authorized holographic wills in one of the state’s very first will-execution statutes in October 1784. Unlike analogous laws in other states, North Carolina’s statute included a location requirement that stated that a holographic will must be found among the valuable papers or effects of the deceased or must be given by the author of the will to someone for safe keeping. Since the passage of the statute, the only meaningful change to the location requirement occurred in 1953 when the General Assembly revised the statute to also allow holographic wills to be found in a safety deposit box or other safe place.

Meanwhile, other states continued to permit holographic wills without imposing any location requirement. The only other state to have a location requirement, Tennessee, did away with its location requirement in 1941. Since then, North Carolina has been the only state to require holographic wills to be stored in certain locations to be effective.

“The holographic will statute’s location requirement is a technical requirement that not a lot of people knew about,” says Bennardo. “That is especially problematic in the context of holographic wills, which are typically thought of as ‘homemade wills’ that are usually made without the advice of counsel by individuals of modest means or in emergency situations. These individuals shouldn’t be prevented from creating a valid will because of a technicality about where they stored it. The location requirement was an experiment when it was enacted in the 1700s, but it should have been removed long ago when it became clear that the requirement was doing more harm than good.”

Bennardo made the case in his paper and in the proposal to the North Carolina Statutes Commission that the state should abolish the location requirement. This requirement makes probate courts’ decisions less efficient but no more accurate. Under the location requirement, holographic wills aren’t fully executed until they are found after the person dies which leads to issues when that person attempts to revoke it before death. The costs associated with the location requirement simply outweighed the benefits.

“The location requirement that a person’s will had to be found in certain approved locations at the time of that person’s death is unsound policy,” says Bennardo. “The place where a person stores their holographic will should be considered as evidence of whether they regarded the document as their will, but it should not be a mandatory requirement. This approach has worked well for other states, and it made sense for North Carolina to do the same.”

On July 8, 2021, the General Assembly amended the statute to reflect the changes suggested by Bennardo’s proposal to abolish the location requirement.