Is Husband’s Undated Holographic Will legally valid?

Dear Mr. Premack: My husband made a handwritten will, with two people signing as witnesses, but he didn’t date the will. The will simply left all his property to me, his wife. Now he has passed away. Is this a valid will? Also, he left to me some books he had written. Do they pass to me under the will, and if so, do I have copyrights to his books? – JG

Let me begin by saying that a Will should always be dated. Tremendous confusion can result from the lack of a date. What if there is another Will, also clearly signed by the testator? Without a date, it may be very difficult to prove which one was signed last (and thus should be followed). Further, it is required that the person offering the Will (you) be able to prove that the testator had testamentary capacity when the Will was made, and if there is no date then such proof may become very difficult to offer.

Still, Texas law does not require that a handwritten Will bear a date as a requisite for being admitted to probate. The case Kramer v. Crout, from all the way back in 1955, is very similar to your situation. A Mrs. Nolan signed a handwritten Will with two witnesses. The Will did not have a date. The appeals court ruled that a handwritten Will need not be dated to be valid, and that despite the fact that Mrs. Nolan’s Will was also signed by witnesses it qualified as a handwritten Will.

You’ll need an experienced probate attorney and an understanding Judge, but with proper pleadings and testimony the court should admit your husband’s Will to probate. The process will be much more involved and expensive than what it would have cost him to prepare a more proper Will with his lawyer. He did not do you any favors when he saved a few dollars by handwriting his own Will – it will cost many times what he saved in extra fees caused by the informality of the Will he left.

After his Will is admitted to probate, its instructions allow you to inherit his entire estate. That includes the books that he authored, including the same copyright protection that he may have acquired during his lifetime. If he never released the books, or released them with a copyright notice attached, or registered them for copyright with the US Copyright Office (a function of the Library of Congress) then you acquired those same rights as his heir. Contact the Copyright Office regarding a transfer of his rights into your name.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, November 25, 2011

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