I enjoy giving speeches to community groups and residential centers. Last week I was speaking at The Towers, and was asked “I had my Will written by an attorney several years ago. I want to change part of the Will and wonder if I can just cross out the part I don’t like and handwrite the changes on the Will. I want my Will to be legally correct, so, is that a valid way to change a Will? – HZ”. Here is an expansion on the answer that I gave at the speech:
Texas law requires that any revocation of a Will or part of a Will be “executed with like formalities” or by physical destruction or cancellation. The term “like formalities” is a bit vague, but was part of the old Probate Code and was carried forward into section 253.002 of the new Texas Estates Code. The courts have interpreted the meaning of the statute, beginning back in 1924 when the Texas Supreme Court heard the case of Brackenridge v Roberts (267 SW 244).
George Brackenridge had made a formal Will, and over time had made seven separate codicils to the Will in his handwriting. He made an eighth formal codicil to the Will with the help of an attorney. Yes, this is the George Brackenridge who had earlier donated land to San Antonio’s to create the park which bears his name.
A few days before he died, George was seen handwriting what appeared to be a new Will that revoked all of his prior Wills. Two credible witnesses testified they saw the completed document, but after his death the document was never located. The trial court ruled that this final Will was valid since it was in George’s handwriting and was signed and dated. The Texas Supreme Court reversed, stating there must also be proof that the written instrument was intended by George to be a Will or a revocation of past Wills. Since the last handwritten document was never located, it was valid for the court to assume that George had destroyed it – that if he ever intended it to be a valid Will he changed his mind. He had not destroyed the prior Will and eight codicils, so the Supreme Court treated them as never having been revoked.
Several rules of law come forth from the Brackenridge case. First, to change a Will you can use any other legal method of making a Will (“like formality”). Thus, a holographic Will can revoke or modify a formal Will, and a formal Will can revoke or modify a holographic Will. The modification must utilize all of the legal requirements of being a Will itself. It is not enough to write something new over something old. To make a binding change, the change must be made with all of the formalities required to make a Will. Second, the intention of the Will’s maker is very important. The maker must intend that the document be a Will. Third, if a valid change is made and then later destroyed or cancelled, the change is revoked. And finally, if a change is revoked and the prior Will was not physically destroyed or cancelled, the prior Will can be reinstated when the document which revoked it is itself revoked.
The Texas Supreme Court has also ruled that a person can revoke part of a Will by writing over that part of the Will with the word “cancelled” or “void”. Like formalities are not required because the statute specifically allows revocation by cancellation (Dean v. Garcia, 795 SW2 763).
The negative act of revoking an existing devise may be accomplished by cancellation. But you cannot at the same time also add a different devise to the Will. When you cross-out part of your Will and write in something new, you are both revoking the earlier instruction (a negative act – “I no longer want to give 50% to my son”) and adding new words giving your new instruction (a positive act – “I want my son to get 60%”).
The only way to legally drop an old provision from your Will while adding a different provision to your Will is to use like formalities — those legally recognized formalities of making a Will at a moment when you have full testamentary intent and capacity. Xing out some words and interlineating new words will be ignored by the courts. My advice is to visit your attorney and ask for replacement Wills that incorporate your changes. Then destroy the prior Wills to be sure they cannot be reinstated if your intentions change again at some future date.
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions at www.texasestateandprobate.com or go there to view the archive of past legal columns.
This column first appeared in the San Antonio Express-News at MySA.com on August 18, 2014. Click here to read the column on the MySA.com website.