A Last Will and Testament is a legal document that allows a person to identify beneficiaries, appoint a legal guardian for minor dependents, and outline how property is to be distributed in the event of their death.
Although the content of a Will can vary dramatically from person to person, all Wills are important legal instruments that can help heirs avoid costly, time-consuming, and emotionally turbulent proceedings required to settle an estate when a person dies intestate (without a Will).
But passing away without a Will isn’t the only thing that can hinder the administration of an estate. Changes to a Will, including any handwritten notes or amendments, can also result in disputes and protracted litigation for those who remain behind.
Holographic Wills and Attested Will in Texas
In Texas, there are two types of Wills:
- A holographic Will is a Will that must be written entirely in the handwriting of the person making the Will (testator). It must be legible and easily read and understood by other people, and signed by the testator. There is no requirement for a witness, notary, or date for a holographic Will.
- An attested Will is a Will that is not written completely in the testator’s handwriting. Typically, these are typed Wills. For an attested Will to be valid, it must be signed by the testator in the presence of at least two witnesses who also sign the Will.
Both holographic Wills and attested Wills must also meet other statutory requirements to be valid. In Texas, this includes requirements that the person making the Will have the legal capacity to make a Will (i.e. are 18 or older, or have been lawfully married, or are a member of the military), and that they have testamentary capacity and testamentary intent, which is legal-ese for these definitions:
- Testamentary Capacity: Texas requires that a person who makes a Will be of “sound mind” for the Will to be valid. A person has testamentary capacity if they are able to understand they are making a Will and disposing of their assets, the nature of their property, the effects of making a Will, and who their relatives are.
- Testamentary intent: A testator must also have testamentary intent at the time they sign their Will. A person has testamentary intent if they intend to make a Will dictating how their assets are to be divided after death at the time the Will is signed.
Handwritten Notes on Texas Wills
Whether handwritten alterations or notes (known as interlineations) on a Will are valid depends on the type of Will:
- Notes added to a holographic Will are valid if they can be shown to have been made in the testator’s handwriting.
- Notes added to an attested Will are valid only if:
- The notes were added before the Will was signed and witnessed by at least two witnesses.
- The notes were added after the Will was signed, and the changes were drafted and executed with the same formalities you followed when writing your Will (also known as “like formalities”).
- The notes consist of the word “void” or “canceled” written over a part of the Will the testator wishes to revoke (there are no requirements for like formalities in this situation).
Real World Example – Handwritten Changes to a Typed Will
Louise had a typed Will that her lawyer prepared in 1985. She signed it in the presence of two disinterested witnesses over 14 years of age (the minimum legal age to properly witness a Will). Each witness also signed the Will. The Will named her three adult children as beneficiaries and split the estate evenly between them. The Will also stated that if any child died before she did, the surviving children would divide the deceased child’s share of the estate.
Many years later, one of her children married and started a family. A few years after that, one of the other three died unexpectedly from a heart attack. The third child never married or had children and always relied on Louise for financial help.
Louise decided to change her Will to include her new grandchildren. Instead of going to an attorney, she crossed out the deceased child’s name and wrote in her grandchildren’s names next to the notation “each to inherit equally”. Next to the married child’s name, she handwrote a list of jewelry, furniture, and other heirlooms she wanted that child to receive. Louise did not cross out the third child’s name because she thought writing in her grandchildren’s names was good enough.
Louise did not sign or initial next to her handwritten changes, no one witnessed the changes, and no one signed the modified Will. Louise died and her married child filed her Will for probate. What is the result?
The Court found that the handwritten changes were invalid and unenforceable. The Court ruled it was required to ignore the handwritten changes and enforce the Will as originally written. Louise’s estate was split two ways between her married child and the unmarried child who had always depended on her for financial support. The grandchildren were not entitled to anything.
This is a troubling but all-too-common example of what can happen to handwritten notes on a typed Will. The resulting dispensation of Louise’s estate appears to be the opposite of what Louise wanted. She intended to give the majority of her estate to her grandchildren and leave nothing to the third child to whom she had already given so much during her lifetime. Unfortunately, the Court could not enforce her changes and was forced to ignore the handwritten changes.
Talk to a Qualified Estate Planning Attorney Before Making Changes to Your Will
Even in purely hypothetical terms, determining the validity of handwritten notes on a Will can be tricky.
“It is not always enough to simply write something new over something old,” advises Hendershot Cowart P.C. Estate Planning and Probate Attorney Ky Jurgensen. “Such changes can open the door to dispute, validity contests, and additional expenses that may ultimately cause the wishes of a well-meaning testator to not be carried out as intended.”
For these reasons, Jurgensen adds, handwritten alterations and interlineations are not the preferred methods of making changes to a Will. Instead, testators can revoke and create an entirely new Will, or use a separate document known as a codicil, which has the same requirements as those for creating an original Will, to add or delete sections or make edits to their existing Will.
At Hendershot Cowart P.C., our probate litigation team has decades of experience counseling clients through will disputes and other probate matters. If you have questions about a potential matter, please call (713) 909-7323 or contact us online to speak with an attorney.