Are Handwritten Changes to a Will a Good Idea?
Say you have a professionally prepared Will. Now imagine you want to make changes to the Will. Should you make a handwritten change to the Will?
Imagine you have a brother, John Doe, who has a Will which reads as follows:
Last Will and Testament of John Doe
January 1, 2016.
- I revoke all prior Wills and Codicils.
- I am married to Jane Doe.
- I have two children, Son Doe and Daughter Doe, who are also children of myself and Jane Doe.
- I name Jane Doe, otherwise Son Doe, otherwise, Daughter Doe as sole Independent Executor of my Will, all to serve without the requirement of bond.
- I leave all my assets to Jane Doe, if she survives me.
- Otherwise, if Jane Does not survive me, I leave all my assets to my children, in equal shares, per stirpes.
Assume all other provisions of the Will were properly drafted including the signatures of two witnesses and a completed self-proving affidavit for the Will.
Now imagine that Jane Doe dies. Your brother, John Doe, marries a new spouse, Lani Lifeguard, that he met on the beach in Florida.
John makes the following handwritten changes to his Will on February 1, 2018:
- Paragraph 4. Marks out “Jane Doe” and writes “Lani Lifeguard as Executor.”
- Paragraph 5. Marks out “Jane Doe” and writes “Lani Lifeguard” so the sentence in total reads “I leave all my assets to Lani Lifeguard.”
Now imagine that John Doe dies and Lani Lifeguard shares a copy of the Will with Son Doe and Daughter Doe. Son Doe and Daughter Doe are outraged that they have been removed from their Father’s Will as Executor and now receive nothing under the Will according to these handwritten changes.
Texas has two types of Wills:
Attested Wills (Texas Estates Code 251.051), and
Are the handwritten remarks part of a valid attested Will?
An attested Will must be in writing, signed by the person making the Will (the “Testator”), and witnessed by two witnesses. When the Will was signed and witnessed on January 1, 2016, there were no handwritten marks on the Will. The handwritten comments were added AFTER the Will was signed and witnessed. Therefore, the handwritten comments are NOT part of the attested Will and have no effect as part of the attested Will.
2. Holographic Wills (Texas Estates Code 251.052)
Are the handwritten remarks part of a valid holographic (handwritten) Will?
A holographic Will must be wholly in the Testator’s handwriting and does not require subscribing witnesses. However, the handwritten remarks on their own are not effective as a holographic Will. The handwritten content consists solely of mark outs and “Lani Lifeguard”, if the changes were made after the original Will was made and not signed and subsequently dated, then the marks will not be a part of the Will.
If the changes were typewritten? Recall that a holographic Will must be completely in the Testator’s handwriting, so the typewritten text cannot be part of the holographic Will.
The handwritten remarks do not qualify as either an (1) attested Will or (2) a holographic Will under the Texas Estates Code and do not control how John Doe’s property passes on his death.
At this point, you hear Son Doe and Daughter Doe let out a huge sigh of relief!
Moral of the Story?
Do not make handwritten changes to your estate planning documents – they may not work! Instead, have a qualified estate planning attorney make any desired changes to your estate planning documents.