The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Holographic wills/codicils are those last wills and testaments and/or codicils that are totally in the handwriting of and signed by the decedent.
Many people ask me if holographic wills are recognized in Texas as valid wills and if they can be probated in Texas courts. The answer is “Yes,” holographic wills are common in this state, and they demand the same respect as an attorney-prepared will even though they may present special problems at time of probate. Holographic wills must meet the requirements of being a will and be specific enough to understand the intent of the testator.
The first requirement to probate any will, holographic or formal, is that the document offered is “in fact” a will or codicil. The following essential elements are necessary to probate any will or codicil, but they become even more pronounced when the document offered is holographic.
- The Will or Codicil must identify the testator. This element is usually met fairly easily, but on rare occasions is omitted. A good example is from my own practice where the testator had a formal will prepared by an attorney, but decided for some unknown reason to make some changes through a handwritten codicil. The formal will stated that he might wish to make a list of personal items that he wanted to pass to particular individuals, and that he would keep that list with his formal will as instruction for his executor. Often testators leave instructions to executors through documents that do not meet the formal requirements of a will for gifts of small and non-valuable assets and which the executor has the option to follow or not to follow. If you wish for your codicil to be enforceable under the law, it must meet all four of the elements outlined in this article. Unfortunately, in the cited case, when the testator left the list, it not only contained numerous high value art items, but it was unsigned and showed no intent to make a gift. The list was nothing more than an inventory list of art items, and, therefore, was unenforceable.
- The Will or Codicil must be written with testamentary intent. In order to be admitted to probate and for the testator’s wishes to be enforceable, it must be clear that the person making the will or codicil intends to have the document treated as a testamentary directive. The most common and least ambiguous way to do this is to make a statement that “this is my last will and testament,” but it is not uncommon in holographic wills for the testator to simply start listing how property is to pass without making it clear that such listing is an expression of testamentary intent. If the intent cannot be unambiguously determined by a simple reading of the document, then it probably will not be considered a will or codicil.
- The person writing the Will must have “testamentary capacity.” For this element, it does not matter if the will is holographic or formal. If the testator lacks testamentary capacity on the day that the will or codicil is signed, then the document is not an enforceable will/codicil. Standards for establishing testamentary capacity are well established by both statute and case law. The important thing to determine is that the testator had capacity on the exact date of the will.
- The Will or Codicil itself must adhere to requisite testamentary formalities. For a holographic will or codicil to be upheld, it must be totally in the handwriting of the testator and signed by the testator. On occasions, this firm has found that sometimes a well meaning person will add additional language by typing, printing or handwriting. If a portion of the will/codicil is typewritten, printed or in the handwriting of a person who is not the testator, then courts will likely apply the “surplusage rule.” If applied, this rule will allow probate of the offered will, but will disregard the language that is not in the testator’s handwriting.
Although adherence to the above basic elements will qualify a holographic will for probate, they do not ensure that the enforcement of the will provisions can be followed without extreme difficulty and added expense. For example, on one holographic will handled by this firm, the testatrix met the burden on all the above-cited elements, but inadvertently created two more time-consuming problems as follow:
- Intended heirs were not clearly identified because the testator simply referred to seven named beneficiaries by their first names only. This did not make the will impossible to probate, but it did make it necessary to clarify the identity of each named person and to show the relationship with the decedent/testator. This required a separate legal action designed to identify the heirs who had been identified by first names only and to have a declaration by the court showing the identities. This procedure would not have been needed if the will had been properly drafted.
- The testator decided to make additions to the will after the date of the original signing. Although the changes were still in her handwriting, they were made and dated approximately three months later and did not include a new signature. As a result, the part added later (i.e., the codicil) did not meet all of the requisites of a valid codicil and was ignored by the Court.
The testatrix was able to save a few dollars at the time of drafting by leaving a holographic will, but caused her family to spend three or four times more than would have been required to probate the will than if it had been professionally prepared.
The bottom line is this: It is usually less expensive to let a professional draft the needed documents. If you are the only living person in an aircraft that is doomed to crash unless safely landed, it is not only wise but also prudent to try to land the aircraft yourself. However, if there is a professional pilot on board who knows how to avoid the crash, you will probably be best served by turning over the controls to the professional. The same is true when it comes to drafting your will.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com
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