June 01, 2017

The Last Word: This Handwritten Will Is Not Brought to You by the Letter “H”

We pride ourselves on doing things a little bit differently in Louisiana—and the law of wills is no exception. Like many states, Louisiana recognizes handwritten wills without the necessity of witnesses. Most states call this kind of will a “holographic” will. Yet, Louisiana omits the “h” and calls this an “olographic” will. Why? And, more importantly, which spelling is correct? The short answer to both questions: it’s complicated.

Bryan Garner writes that the “spelling olograph is a NEEDLESS VARIANT that has appeared in a few hundred cases—but many hundreds fewer than the etymologically preferable holograph.” Bryan A. Garner, A Dictionary of Modern Legal Usage 406 (2d ed. 1995). The emphasis is his, not mine. Garner goes on to opine that the “olographic” spelling is “prevalent in Louisiana” but not elsewhere. Id.

No self-respecting civilian or Louisianan would find Garner’s explanation acceptable. In fact, our spelling may be the more common spelling if you are willing to broaden your viewpoint. This is not entirely surprising given the significant influence civil law has on the law of wills. As to the “etymologically preferable” spelling—that is a debatable point.

The origins of the olographic testament remain murky. Roman law allowed less formal wills only in exceptional circumstances, and some of the Barbarian Codes may have similarly recognized such wills. But the idea behind these wills was not really the same as the olographic will.

Planiol explains that the olographic will, as we know it today, apparently gained acceptance in the customary laws of some regions of France during the 16th and 17th centuries and was officially endorsed by the Code Napoléon in 1804. Marcel Planiol, Traité Élémentaire de Droit Civil § 2686 (1903). Many jurisdictions followed suit and copied the approach taken by the Code Napoléon—including spelling the word without an “h.”

The olographic testament gained acceptance in many American states through French and Spanish influences. Like their European counterparts, American states adopted both the definition and the spelling used by the Code Napoléon—a testament to the Code’s incredible influence. The California Civil Code, for example, once provided: “An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself.” Cal. Civ. Code § 1277 (adopted 1872, repealed 1931). Montana, Oklahoma, North Dakota, South Dakota, and Utah once had similar provisions—including the “olographic” spelling.

Virginia complicated things. Virginia apparently allowed the olographic testament as early as 1752. Without assigning a name to the type of testament, Virginia allowed unattested wills so long as they were written entirely in the testator’s own hand. 1 The Acts of Assembly Now in Force in the Colony of Virginia, Ch. V, § VII, at 230 (1752). This is a bit puzzling because unattested wills were not allowed at common law. At least one author has speculated that Virginia was inspired by civil customary law. Adam J. Hirsch, Inheritance and Inconsistency, 57 Ohio St. L.J. 1057, 1072 n.44 (1996). It is also plausible that Huguenots who arrived in Virginia in the 1700s from France brought the practice with them. A few states—including Mr. Garner’s home state of Texas—modeled their statutes on the Virginia law and likewise neglected to designate a term to describe the unattested handwritten testament. It was only later that these states began to describe the unattested handwritten testament as “holographic”—likely borrowing the term from neighboring states (like Louisiana).

As to which spelling is etymologically preferable, that depends on your perspective. One might expect an advocate of brevity like Mr. Garner to advocate for the shorter usage—not simply the more familiar. More importantly, having introduced the concept of the olographic will to the modern world, shouldn’t the Code Napoléon have some say in the appropriate spelling? After all, it seems that this term was created in France to describe unattested handwritten wills some time in the 16th or 17th century. The Code Napoléon adopted the term and served as a model for legislation in many other jurisdictions.

The LSU Classics Department confirms that the word olograph is a combination of two Greek roots: “óλο” meaning “all” or “whole” and “γραφ” meaning “written.” My colleague, Dr. Wilfred Major, explains that the diacritical mark above the first letter of óλο indicates an aspiration at the beginning of the word—like an “h” sound. A number of languages, including French and Spanish, have not retained that sound. When translating that word to French, therefore, the Code Napoléon was correct to omit the “h.” In turn, jurisdictions deriving the term from French—like Louisiana—are correct to omit the “h.” Yet, even this explanation oversimplifies things. Dr. Major explains that the Greek language itself has, at times, ceased and then resumed pronouncing the aspirations.

All of this is to say that the correct etymology is not nearly so simple as Mr. Garner suggests. Dismissing the term “olographic” as a needless variant is a úge oversimplification.

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