What is a holographic will under Texas law?

A holographic will is a handwritten will. Although it sounds like it should be one of those foil pictures that with three dimensional pictures; it is less exciting. Each state has its own rules for what makes a holographic will valid. Not all states even accept them.

Attorneys for Texas wills

While Texas accepts holographic wills as valid wills, they must satisfy specific requirements. First, the testator – the person making the will – must have the intellectual competence to make and sign a will.

This means if the testator was mentally ill, intoxicated to the point of lacking competence, or adjudicated mentally incompetent, or any other legally recognized state lacking competence, the will becomes unenforceable. Second, the testator cannot revoke the will. If the testator replaces the will by a formal will or merely revokes it, then it becomes unenforceable.

Third, the testator must have intended for the document to be a will. This means the testator had to know that the document will become a will; and intends for the will to divide his or her estate to the beneficiaries named in the will. It probably seems obvious that when a person writes a will they intend for it to be a will but sometimes that is not the case. For example: a document written and signed as a joke; a document written and/or signed by fraud; it might be the product of anger to annoy or anger other people; or the person writing it may not have understood what the document did (even though legally the person was competent to sign legal documents).

Fourth, the handwritten will must satisfy one of two combinations of written authenticity. If the testator handwrites the will then the testator must only sign and date the document to make it valid. If the testator did not handwrite all of it (somebody else wrote it or typed it), then the testator must sign it in the presence of two witnesses. Those witnesses must sign the will in the presence of each other and the testator.

Holographic wills in Texas

As you can imagine, there are many obvious problems in proving a holographic will is valid. If the testator handwrote the will, it may require handwriting experts to prove the validity of the handwriting. If signed in the presence of witnesses then supporters of the will must prove the witnesses and the testator all signed together and that the witnesses are honest. The competency of the testator and the intent of the testator may be difficult to prove. (If the testator was in extreme pain, thought she was about to die and wrote a will in the hospital, was she competent?) But if the will was revoked, can proof of the revocation be proven?

If you can prove that the holographic will is valid on face, then you have to look at the language to see if the intended language is valid and if the language divides the estate in the way the testator wanted it. It is very possible that the language will violate Texas probate law. The result is an unenforceable will. The court will act as though there is no will. (At least to the extent the language is invalid). Even where the language is valid the courts may construe it differently than what the testator intended.

To summarize this point, a will that states, “all to my wife” is probably going to receive the effect of those words. It is very clear and there is little to interpret. However, what if testator never revoked the holographic will but the testator divorces his wife shortly before dying? Or remarries? Does the will still leave everything to the ex-wife? The new wife? Unclear and ambiguous language can make it very difficult for the court to give proper effect. This often results in family members fighting over the meaning of the will.

It is not impossible to write a valid, clear holographic will; but the likelihood is that a holographic will may result in a difficult and more expensive probate process than taking the time and money to have a formal will drafted by an estate planning attorney.

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