San Antonio Express-News MySA.com Copyright 2011, Paul Premack
September 2, 2011
What are the
legal formalities for changing a Will?
Dear Mr. Premack: If a codicil is not written in the personal
handwriting of the person who made the will, and is not signed, is it
legal to use it in the probate court? –P.H.
Your one-line question
requires a lot of background information in order to understand the
answer. The person who made the Will is legally called the “testator” (or,
in the somewhat dated legal jargon, “testatrix” if female). If the
testator made a valid Will at some earlier date and wants to change it,
specific legal formalities are necessary before the change can be
The Texas Probate Code lays out the requirements for a
valid Will, which are also the requirements for a valid modification to a
Will, which is referred to as a codicil. To be valid, the Will or codicil
must 1) be in writing, 2) be signed by the testator (or, in a rarely used
exception, signed by another person for the testator by his direction and
in his presence), and 3) be signed by two or more credible witnesses who
are above age fourteen. This type of witnessed will is referred to as an
“attested Will”. The only exception is that if the Will is holographic
(entirely in the testator’s handwriting) it need not be attested.
Other refinements necessary to make the Will function properly include 1)
self-proving the Will, and 2) being sure the Will is properly dated so
that it can be placed properly into its historical timeline.
Applying those standards to your question, the answer is “no”. You posit a
“codicil” that is not written in the personal handwriting of the testator.
It is not signed. Thus, it does not meet the legal formalities necessary
for it to be recognized as a Will or a codicil, and would not be admitted
to probate in court. In the same vein, handwritten notes jotted on an
attested Will are ignored because they are also unsigned.
modification to be acceptable, it must either 1) be wholly in the
testator’s handwriting and bearing the signature of the testator, or 2) be
in anyone’s hand or be typewritten, bearing the signature of the testator
placed before two qualified witnesses who also signed. These witnesses
cannot just attest in any way or at any time. They must, by law, see the
testator sign and must see each other sign and the testator must see them
Your question does raise an interesting legal issue: can an
attested Will be modified by a holographic codicil? The Texas Probate Code
states that any document that seeks to revoke part or all of a Will must
be “executed with like formalities” (inherently, a change to a prior Will
“revokes” part of it and replaces it with the new instructions). Does that
mean that an attested Will can only be changed using an attested codicil
(not by a holographic codicil)? Or that a holographic Will can only be
changed using a holographic codicil (not by an attested codicil)?
The statute gives no guidance, so as you might expect the ambiguity has
landed in court a number of times. One of the most recent decisions is
from the Texas Court of Appeals in Waco. In the Cason v. Taylor case, the
court ruled that, “While the statute says that the subsequent instrument
must be executed ‘with like formalities,’ this does not mean that a
typewritten, attested will can be revoked only by a later typewritten,
attested instrument, or that a holographic will can be revoked only by a
later holographic instrument… A holographic will can revoke an attested
will, and vice versa, so long as the revoking instrument is in accordance
with the legal requirements” for making a valid will.
“codicil” which you asked about would have worked had it been “in
accordance with the legal requirements”. If it had been in the testator’s
handwriting and signed by the testator, it would have been valid, even if
the Will it was changing had been a typewritten attested Will.
(...and note, the testator must have legal capacity to make a Will - which
is called "testamentary capacity".)
Disclaimer: This column answers a specific
legal question asked by an individual in Texas. The answer may or may
not match your individual situation. Be careful not to treat this
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Paul Premack is Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by
the Texas Board of Legal Specialization and the ABA. He is licensed to pracice law in Texas, focusing on Probate, Estate Planning and Elder Law in the San Antonio area.
Benjamin Premack holds a JD and a Masters Degree in International Affairs. He is licensed to practice law in Washington State and in
Colorado, focusing on Business Formation, Commercial Law and Estate Planning in Bellevue and the Seattle area.