Ink splotches. Inserted pages. Cross-outs. Handwritten notes.
These are the wrong ways to go about changing your will.
A will in Texas is valid if you sign it before two or more credible witnesses who are 14 or older, and they also then sign it in your presence. That is called an “attested” will.
If you have an attested will in Texas, then you can only alter it by going through the same formalities. You must sign the alterations before two credible witnesses, and they must sign the same document in your presence. If you do not follow the same formalities, then your alterations have no effect and the court will ignore them.
This has been the law for a long time. One early published opinion was about a will that contained unexplained smears. Mrs. Fogelman signed her attested will in 1899. She died in 1916. Several months later, Mason Fogelman filed his wife’s will for probate. In at least 3 places, names of people had been blotted out with ink. The Court ignored the ink blots and enforced the will as it was originally written.
In a 1992 case, a man signed his 3-page will in his lawyer’s office and was given the original in an envelope. Later, the man handed an envelope to his nephew and told him it contained his will. After the man died, the document that was in the envelope was filed for probate. The last two pages contained original signatures of the will, but the first typewritten page was completely different. The court determined that the man had switched the first page out, but that because it had not been done with all the will formalities, it should be ignored.
A 1948 case involved a man who had scratched out the word “eight” and written in the word “seven”, along with several other handwritten changes. Although the court concluded the man was attempting to change his will, it ignored the changes because they were not made with all the will formalities.
Another case involved a man who tried to make the handwritten changes correctly with a witness but failed. He took his original attested will and, in his own handwriting, added a new devisee (someone who would receive part of the probate estate) and then initiated his changes. One witness also signed the changed document. The court refused to recognize the changes because it had not been attested by two witnesses.
Not every do-it-yourself alteration fails. In another case, a man successfully made the changes because he had his signature and handwritten changes witnessed and signed by 3 credible witnesses.
Then there are the Texas holographic wills. The same rules apply to changes, but in a slightly different way. You can make a valid holographic will in Texas by handwriting the entire document. If you have a holographic will, then you can make changes to it as long as they, too, are entirely in your own handwriting.
Note that the rules only apply to changes to your will. If you want to entirely revoke your will, then you can do that in writing or by burning, canceling, tearing, or obliterating it. If your original will cannot be found after you die, then the court will presume that you revoked it by destroying it.
The upshot is – do not mark on your original will. If you want to change your will, then do it the right way. Sign a will codicil form or a new will with all the required formalities.’
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Virginia Hammerle is in her fourth decade of practicing law. She is Board Certified in Civil Trial by the Texas Board of Legal Specialization and an Accredited Estate Planner. Contact her at legaltalktexas@hammerle.com or visit www.hammerle.com. This column does not constitute legal advice.
