Can son or his wife witness my Will?

This column first appeared in the San Antonio Express News and other Hearst newspapers on May 8, 2020.


Dear Mr. Premack: I've prepared a Codicil to my Will and need two witnesses at the notary’s office. The only two I can get is my son & daughter-in law. My estate is not large, and no real estate property is involved. Would my Codicil be deemed legally acceptable under Texas laws? - WT

Under Texas law, a typed Will (or Codicil) is valid only if it is signed by you in the presence of two qualified witnesses. Notarization is additional and recommended, but the document must include legally mandated phrases to make the formal Will (or Codicil) self-proven.

Who may act as qualified witnesses? Anyone who is 14 years or older and who is legally competent. Who may NOT act as qualified witnesses? Anyone who is named in the Will as a beneficiary or heir.

If the Codicil you have prepared names your son or his wife as a beneficiary or heir, then after you die when the Will/Codicil are presented for probate, the court will reject the Codicil due to lack of qualified witnesses. However, the witnesses may elect to abandon their inheritance, which would allow the court to accept the Codicil since they would no longer be beneficiaries or heirs.

Clearly you do not want to force your son and his wife to lose their inheritance. Thus, you need to find two other qualified, unrelated witnesses.

But wait. You said that you have prepared this Codicil yourself. You were wise enough to ask about the witnessing requirements, but what else are you missing? Perhaps something that you do not even know to ask. Because of the technical nature of your Will, making a Codicil must be done in a specific manner and must use specific wording so it accomplishes your goals instead of making a legal mess. My recommendation is that you visit the lawyer who wrote your original Will for you and ask that lawyer to review or re-draft your proposed Codicil. Then your heirs will be safe, and you can rest easy knowing that your Will and Codicil work together seamlessly to accomplish your goals.

Many lawyers currently refuse to make Codicils at all. The lawyer who drafted your original Will should still have the wording in the lawyer’s computer. It may be more cost effective, and certainly would be less confusing, to replace the original Will with a new Will containing your modified instructions.

My last comment is that during the Coronavirus lockdown, many law firms are unable to maintain their pre-virus routines. Signing a Will is a formal process that, when done in the lawyer’s office, goes very smoothly. Due to social distancing requirements and the stay at home orders, it will be a while until those smooth routines are re-established. Hence, you could ask your attorney (via phone or video conference) to help with a holographic update to your Will, which does not legally require witnesses, but must say exactly the right words to be legally correct.

Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) 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 practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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