Is it a will if someone’s wishes are written on a napkin?

When it comes to estate planning, understanding the formalities involved can help to better ensure that any documents you – or a loved one – create are ultimately legally enforceable.  What, for example, happens if someone’s wishes are written on a napkin? Can such a document be considered a valid will in Virginia? 

Virginia recognizes several types of wills, including formal wills and holographic wills. A formal will is typically typed up electronically and signed by the will’s creator, also known as a testator. This signature process must generally occur in the presence of at least two witnesses. By contrast, a holographic will is a document that serves as a handwritten will that does not require witnesses, although it must be entirely written and signed by the testator.

Holographic wills: The napkin scenario

If someone writes their wishes on a napkin, it could potentially be considered a holographic will, provided that certain conditions are met:

1. Entirely Handwritten: The will in question must be entirely executed in the testator’s handwriting. If any part of the will is typed or written by someone else, it may not be considered valid as a holographic will.
2. Signed by the Testator: The testator must sign the document. In Virginia, the signature does not need to be at the end of the document, but it must clearly show that the testator intended the document to serve as their will.
3. Testamentary Intent: The document must demonstrate the testator’s clear intent to distribute their property upon death. Phrases like “I bequeath” or “I give” can help establish this intent.
4. Sufficient Evidence: Even if the napkin meets these criteria, it still must be proven in court. Witnesses who are familiar with the testator’s handwriting may need to testify to its authenticity. The court will also consider whether the document truly reflects the testator’s final wishes.

While it’s possible for a handwritten note on a napkin to be recognized as a valid will in Virginia, relying on such informal documents is risky. Napkins can be easily lost, damaged or contested. Moreover, they may not address all aspects of an estate, leading to potential disputes among heirs. When possible, it is far preferable to seek personalized legal guidance in order to execute a will that is more likely to be treated as binding.