Handwritten Wills in Texas
The attorneys at Ford+Bergner receive questions regularly about the validity of handwritten Wills in Texas. Also known as “holographic” Wills, a handwritten can be valid in some circumstances. However, they are not recommended.
In order for a handwritten Will to be valid, it must be written completely in the handwriting of the Testator (the person whose Will it is). If any part of the document is not in the Testator’s handwriting, then the handwritten Will is not going to be valid. In addition to the handwriting requirement, the Will must be signed by the Testator, and it must be dated. On the date the Will is signed, the Testator must have had the competence to create a Will. He must have intended for the document to be a Will, and he can never later revoke the Will for it to be valid.
As a side note, a handwritten Will that is not completely in the Testator’s handwriting can be valid, but it must be signed in the presence of two witnesses, and those witnesses must sign the Will in the presence of the Testator and in the presence of each other. It is important that any time a Will is witnessed, the witnesses must actually see the Testator sign the Will, and the witnesses must sign the Will in the presence of the Testator and each other. The Will cannot be signed outside the presence of the witnesses, and the witnesses cannot sign the Will outside the presence of each other.
Routinely, handwritten Wills become the subject of litigation after the Testator’s death. Because most Testators do not understand what is required to make a valid Will, the Will may have defects. These defects may be as obvious as having another person write a portion of the Will, or they could be less obvious mistakes related to unclear wording or intentions. When the provisions are unclear, they open up opportunities for the family to fight over the correct interpretation of the provisions. These fights are not only costly and time-consuming, but they have the effect of tearing families apart.
When a question arises as to whether the Testator wrote the entire Will himself, it becomes necessary to hire handwriting experts to compare samples of the Testator’s handwriting to the handwriting of the Will. If they do not match, then the Will is not valid.
Likewise, when language contained in the Will is unclear, the various members of the family must solicit testimony from friends, family, and others who knew the Testator. Whichever party can produce the most credible testimony as to the Testator’s true intentions will prevail in the lawsuit.
Whether having to hire handwriting experts or collect family and friends to provide testimony, lawsuits related to handwritten Wills are very tough. These difficulties are easily avoided by the execution of a proper Will drafted by an attorney. The attorneys at Ford+Bergner LLP regularly draft such Wills at very reasonable rates, and they provide competent advice on the issues relating to a Will.
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[06/14] — F+B Managing Partner Don D. Ford III appointed by the Texas Supreme Court to the Judicial Branch Certification Commission.
[06/14] — F+B Managing Partner Don D. Ford III spoke at South Texas College of Law's 29th Annual Real Estate Law Conference June 6, 2014.
[03/14] — Ford + Bergner's Houston Office is Moving Effective April 1, 2014