Wills and Estates – Last Will and Testament Law – Hawaii

Note:    This summary is not intended to be an all inclusive summary of the law of wills in Hawaii, but does contain basic and other provisions. Hand written wills or wills where the testator cannot sign the will himself are not discussed.

Who may make will: An individual eighteen or more years of age who is of sound mind may make a will. 560:2-501.

Execution of wills: A 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 the individual witnessed the signing of the will by the testator.

A will that does not comply with the above 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.

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. 560:2-502.

Writings intended as wills, etc: Although a document or writing does not comply with the law as to execution, 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:

(1) The decedent’s will;
(2) A partial or complete revocation of the will;
(3) An addition to or an alteration of the will; or
(4) A partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the will. 560:2-503.

Self-proved will: 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. The will you have found contains the required affidavit.

An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will.  560:2-504.

Who may witness: An individual generally competent to be a witness may act as a witness to a will. 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. 560:2-505.

Choice of law as to execution: A written will is valid if executed in compliance with Hawaii law, or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national. 560:2-506.

Revocation by writing or by act:

(a) A will or any part thereof is revoked by:

(1) Executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) 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. 560:2-507.

Separate writing identifying devise of certain types of tangible personal property: 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.

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 the effective date of this article, 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. 560:2-514.

Penalty clause for contest: A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. 560:2-517.

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. 560:2-516.