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HAWAII LEGAL INFORMATION
Last Will and Testament Statutes
Link to the Hawaii Statutes online which contain the portion of the Probate Code dealing with last wills, see Sections 560:2-501, et al.
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected Hawaii Statutes
- Who may make will. An individual eighteen or more years of age who is of sound mind may make a will.
Hawaii Code Section 560:2-501.
- Execution; witnessed wills; holographic wills.
(a) Except as provided in subsection (b) and in sections 560:2-503, 560:2-506, and 560:2-513, a will must be:
- In writing;
- Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
- Signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
(b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
(c) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.
Hawaii Code Section 560:2-502.
- Writings intended as wills, etc. Although a document or writing added upon a document was not executed in compliance with section 560:2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
- The decedent's will;
- A partial or complete revocation of the will;
- An addition to or an alteration of the will; or
- A partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the will.
Hawaii Code Section 560:2-503.
- Self-proved will. (a) A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:
I, _______________, the testator, sign my name to this instrument this _____ day of _________, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
Testator
We, ____________, _______________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's will and that the testator signs it willingly (or willingly directs another to sign for the testator), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.
Witness
Witness
The State of Hawaii
County of _____________
Subscribed, sworn to and acknowledged before me by _______________, the testator, and subscribed and sworn to before me by _______________, and _______________, witness, this _____ day of __________.
(Seal)
(Signed)
(Official capacity of officer)
Hawaii Code Section 560:2-504.
- Who may witness. (a) An individual generally competent to be a witness may act as a witness to a will.
(b) The signing of a will by an interested witness does not invalidate the will or any provision of it, including any gift to or appointment of the witness.
Hawaii Code Section 560:2-505.
- Revocation by writing or by act. (a) A will or any part thereof is revoked by:
- Executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
- Performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a "revocatory act on the will", whether or not the burn, tear, or cancellation touched any of the words on the will.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.
(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.
Hawaii Code Section 560:2-507.
- Separate writing identifying devise of certain types of tangible personal property. Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
Hawaii Code Section 560:2-513.
- Contracts concerning succession. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1, 1997, may be established only by:
(1) Provisions of a will stating material provisions of the contract;
(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(3) A writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
Hawaii Code Section 53-4-22.
- Duty of custodian of will; liability. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall either deliver it with reasonable promptness to a person able to secure its probate or if none is known, deposit it with an appropriate court. A person who knowingly and wilfully fails to so deliver or deposit a will is liable to any person aggrieved for any damages that may be sustained by the failure, and the court may award treble damages. A person who wilfully refuses to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court. Proceedings under this section shall be brought in the probate proceeding relating to the will.
Hawaii Code Section 560:2-516.
Library of Informational Legal Articles
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