Hawaii Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property and names the person (your personal representative, sometimes called an executor) who will administer your estate after you die. It can also name a guardian for minor children.

2. 2

   Hawaii requires at least two witnesses. Under HRS 560:2-502(a) a will must be in writing, signed by the testator, and signed by at least two individuals who each witnessed the testator's signing or acknowledgment. The witnesses do not have to sign in the testator's presence or in each other's presence, only within a reasonable time after witnessing.

3. 3

   An interested witness does not void the will. HRS 560:2-505 provides that the signing of a will by an interested witness, meaning one who also receives a gift under it, does not invalidate the will or that gift. Using disinterested witnesses is still recommended to avoid any dispute.

4. 4

   A self-proving affidavit is available and needs a notary. Under HRS 560:2-504 the testator and witnesses can sign a sworn affidavit before an officer authorized to administer oaths (a notary), which lets the will be admitted to probate without locating the witnesses later. This affidavit, not the will itself, is the part that involves a notary.

5. 5

   Holographic (handwritten) wills are recognized in Hawaii. HRS 560:2-502(b) validates a will that is not properly witnessed as a holographic will if the signature and the material portions of the document are in the testator's own handwriting.

6. 6

   You must be at least 18 and of sound mind. HRS 560:2-501 allows an individual eighteen years of age or older who is of sound mind to make a will.

7. 7

   A will can be revoked by a later will or by a physical act. HRS 560:2-507 allows revocation either by executing a subsequent will that revokes the prior one, expressly or by inconsistency, or by a revocatory act such as burning, tearing, canceling, obliterating, or destroying the will with intent to revoke. Divorce also revokes gifts to a former spouse under HRS 560:2-804.

Hawaii Requirements for Last Will and Testament

• Sign the Will in Writing With Two Witnesses

  A Hawaii will must be in writing, signed by the testator, and signed by at least two individuals, each of whom signed within a reasonable time after witnessing the testator's signature or acknowledgment of the will (HRS 560:2-502(a)). The witnesses need not sign in the testator's presence or each other's presence.

• An Interested Witness Does Not Invalidate the Will

  Under HRS 560:2-505, the signing of a will by an interested witness, meaning a witness who also receives a gift under the will, does not invalidate the will or that gift. Choosing witnesses who receive nothing under the will is still the safer practice to avoid a later dispute.

• The Will Itself Does Not Require a Notary

  Hawaii does not require a will to be notarized under HRS 560:2-502; the required formalities are a writing, the testator's signature, and at least two witnesses. A notary is only involved if the testator adds the optional self-proving affidavit.

• A Self-Proving Affidavit Is Available and Requires a Notary

  Hawaii allows a will to be made self-proving under HRS 560:2-504 through an affidavit signed by the testator and witnesses before an officer authorized to administer oaths (a notary). A self-proved will can be admitted to probate without locating the witnesses to testify.

• Holographic (Handwritten) Wills Are Recognized

  HRS 560:2-502(b) recognizes a holographic will, valid even if unwitnessed, when the signature and the material portions of the document are in the testator's own handwriting. Extrinsic evidence may also help show testamentary intent under HRS 560:2-502(c).

• Minimum Age and Capacity

  A testator must be eighteen years of age or older and of sound mind to make a valid will in Hawaii (HRS 560:2-501). The self-proving affidavit form in HRS 560:2-504 further recites that the testator acted under no constraint or undue influence.

• Revoking a Prior Will

  A Hawaii will can be revoked by executing a later will that revokes it, expressly or by inconsistency, or by a revocatory act performed with intent to revoke, such as burning, tearing, canceling, obliterating, or destroying the will or part of it (HRS 560:2-507).

• Divorce Automatically Revokes Gifts to a Former Spouse

  Under HRS 560:2-804, a divorce or annulment (or termination of a reciprocal beneficiary relationship) automatically revokes any revocable disposition, appointment, or fiduciary nomination in favor of the former spouse or former reciprocal beneficiary, unless the governing instrument, a court order, or a contract provides otherwise. Update your will after a divorce to confirm your wishes.