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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 recognized.

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.

For a 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 sign.

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.

The “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.

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

Original Publication: San Antonio Express News, September 2, 2011


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