The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Very often, this firm is faced with a formal Will which is being offered for probate that has been altered by pen and ink changes. Even though it is probable that the testator made these changes, in most cases they will be ignored by the court.
Examples of the types of ineffectual changes encountered by this firm are as follows:
- A beneficiary has predeceased the testator, and the testator attempts to redirect the gift to another beneficiary by scratching out the original beneficiary and substituting another.
- For one reason or another, the testator has decided that he does not wish for the person named as the independent executor to serve in that capacity and has penned in the name of a substitute executor.
- A trust provision in the Will was contingent upon certain conditions existing such as, the beneficiary reaching the age of 30 before the beneficiary inherited a portion of the estate free of trust. In some cases, this firm has encountered entire sections of a formal Will that have been scratched out, or otherwise modified by the testator.
If a testator wishes to make changes to a formal Will, then those changes must be made with the formalities of a Will. This can include:
- Going back to an attorney of your choice to have him/her draft a codicil to your Will and republishing the original of the Will. (This approach is highly recommended.)
- By separate document, publishing a handwritten codicil making desired changes. If you take this approach, which is NOT advised, be certain that you do not accidentally invalidate the entire original Will by use of language that you have gleaned from the original Will. This revocation can easily end up yielding unintended consequences. Be certain that you are clear regarding your intent to change only a portion of the Will. Prepare the codicil totally in your handwriting (not even one word should be typed). This approach sounds very simple, but it is fraught with danger. In the experience of this firm, we have encountered a testator who attempted to make this type of holographic codicil, but instead invalidated his entire Will so that neither the original Will nor the codicil could be admitted to probate. I cannot overemphasize the importance of obtaining professional help in attempting to make these changes.
Chances are great that the probate court will completely ignore any changes made to a formal Will after it has been signed and witnessed. In re Estate of Flores, 76 S.W.2nd. 624,631 (Tex. App. – Corpus Christi 2002, no pet.) the Court states in part, “… changes made by the testator after the Will has been signed and witnessed are of no effect; the Will must be probated as originally written, unless the changes were made with formalities required for the making of the Will.”
At first glance, the casual observer might come to the conclusion that this rule of law is unfair or ill-founded, but it is intended to make certain that your wishes have been followed. For example, if “evil Uncle Larry” did not like the fact that he received fewer gifts in your Will than did “helpful Harry,” and if evil Uncle Larry were to get his hands on the original of your Will, he might be able to cross out the sections that he didn’t like and substitute others to his advantage. The courts are very conscious that they have an important duty to you to protect your wishes as they are set out in your original Will and will strive to be faithful in the execution of that duty.
It is realized that many people are reluctant to contact an attorney and incur even modest legal fees to make changes to their Will. This is typically false economy; a professional codicil would require far less time, trouble and expense than having your estate pass in a way that is not consistent with your wishes or that spawned a Will contest.
Those of us who live in the Montgomery County or Harris County areas of Texas are fortunate to have an abundance of qualified attorneys who can make sure that your testamentary wishes are followed, and that the requisite legal documents are prepared properly. As always, this firm recommends that you find an attorney of your choice that is both knowledgeable and experienced in the drafting of Wills and their probate.
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
IF YOU WISH TO SUGGEST A TOPIC FOR THIS COLUMN, SEND TO:
JAMES M. BRIGHT
14340 TORREY CHASE BLVD., Suite 150
Houston, Texas 77014