By all accounts Bobby had been a busy man in his 77 years on earth. He fathered 4 children. He married 4 times (although 2 of those marriages were to the same woman). After divorcing the last wife, he lived with yet another woman, Susan, for the 15 years leading up to his death.
Bobby was also busy when it came to making wills. In 2001 he signed a will that left his estate to his children. In 2005 he apparently changed his mind and signed a new will, drafted by a lawyer, that gave a measly $25 to each of his children, and left the remainder of his estate to his live-in friend, Susan.
Then came July 15, 2016. That was the day that Bobby called his daughter and asked if she still had his old 2001 will. He said he needed to write something on it. As fate would have it, his daughter did have the 2001 will. Revoked and almost forgotten, it had lingered for years in her home gun safe.
The daughter brought Bobby’s original 2001 will over to her brother’s house. Bobby and his son, both of whom had been working in an adjacent hayfield, met her in his driveway. A local notary was called. Bobby’s daughter-in-law, sitting in her golf cart, watched from afar as Bobby placed the 2001 will on the hood of his daughter’s car, pulled a pen out of his shirt and hand wrote “This will still stands.” He signed his name beneath the writing. The notary witnessed, signed, and stamped it.
Having thus engaged in a bit of do-it-yourself lawyering, Bobby returned to his usual activities. He died 2 years later while bailing hay. He left an estate apparently worth fighting over.
What do you do when the deceased has written a note on an old revoked will? You litigate, of course. Preferably for years and at a cost of thousands of dollars.
So, they did. The daughter claimed the 2001 will, bearing the 2016 handwritten note, was Bobby’s last will and should be probated. If the daughter was correct, then the children would get the entire estate and Susan would receive nothing.
Not surprisingly, Susan disagreed. She wanted the 2005 will, which left almost everything to her, declared valid.
The final trial featured testimony from Susan, Bobby’s daughter, a forensic document examiner and handwriting expert, Bobby’s son, the daughter-in-law, the notary, and a witness to the 2005 will. A judgment was handed down, and the case appealed.
The judge found that the 2005 will revoked the 2001 will. Susan won, right? Not so fast, because the judge also found that the 2016 penned statement “This will still stands” was an amendment, known as a codicil in legal circles, to the 2001 will.
The codicil was valid because it had all the necessary elements of a holographic will: it was entirely in Bobby’s handwriting, and it was signed by him. Further, three people testified that they saw Bobby write and sign the codicil.
The 2016 codicil had a startling effect. It revoked the 2005 will because it changed the entire disposition of Bobby’s estate from Susan to Bobby’s 4 children. And it unrevoked the 2001 will because it republished that will, effective 2016.
That made the 2001 will Bobby’s final will. Bobby’s children got his estate.
Think of the time and money that would have been saved had Bobby, instead of using the car as a signing platform, had just gotten in on that fateful day and driven to his lawyer’s office to sign a brand new will.
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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 email@example.com or visit www.hammerle.com. This column does not constitute legal advice.