A will helps to communicate a decedent’s final wishes, including how they wish for their estate to be administered and which assets are to be given to specific beneficiaries. However, what if the decedent wrote letters to an attorney before they passed away that requested changes to be made to the will? Can a letter to an attorney amend a will’s contents after death? Are they valid to make changes post-mortem as a codicil?
The Price v. Huntsman, 430 S.W.2d 831 (Tex. Civ. App. — Waco 1968) helps to answer these questions.
Facts & Procedural History
The testator executed a will that left her entire estate to relatives of her late husband. Years later, she fell ill and wrote two pages of notes to her attorney requesting changes to some specific bonds and bank accounts she wanted to go to friends rather than her husband’s relatives.
Unfortunately, she was found unconscious at home the next day and soon passed away. Her aforementioned handwritten letters were discovered at her home addressed to her attorney in an envelope along with bank books, a key, and a $20 bill.
The attorney offered the will for probate while the individuals named in the letter sought to probate the decedent’s letters to her attorney as a codicil revoking portions of that will.
Wills and Letters to an Attorney
To constitute a valid will, a document must be executed with testamentary intent, which is the intention to create a revocable disposition of property after death. The document is usually created with the help of an attorney and typically names a designated executor who will be responsible for carrying out the instructions laid out in the will. While state laws vary, in Texas, a will must be in writing, signed by the testator, and witnessed by two adults who are not named beneficiaries in the will.
Letters to an attorney outlining desired changes to a will generally show intent for the lawyer to draft a new will or codicil rather than serving as a codicil themselves.
How to Change a Will
Revoking or altering an existing will requires executing a subsequent codicil or new will with the formalities required by state law for will execution.
Letters to an attorney communicating desired revisions do not automatically amend a will just by virtue of their contents absent evidence showing testamentary intent for the letter itself. Without such evidence, probate courts will likely deny giving effect to an informal letter as a codicil or new will.
In this case, the court rejected the letters to the attorney that the decedent left behind as they were not codicils, but rather intended amendments to her will. However, since the contents of the letter was not added into the will, the wishes left behind in the original will were instead followed.
While convenient, letters instructing attorneys on desired estate plan updates will not substitute for properly executed codicils or new wills in most cases. Letters to attorneys outlining will changes often just convey instructions for drafting rather than testamentary intent. Without evidence the writer intended the letter itself to constitute a codicil or new will, courts will deny it probate.
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