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Can an Unsigned Handwritten Document Count as a Will?

If someone dies in Texas and they left a handwritten written document that gives away their property on death, can that document be a valid will?  What if the person did not sign the will?

The answer is often, “yes,” as Texas law allows for handwritten wills.  The courts will often admit the wills even if there is no signature on the document.  

The Wilson v. Franks, No. 03-22-00718-CV (Tex. App.–Austin [3rd Dist.] 2023) provides an opportunity to consider these situations.  It involves a handwritten document that was not signed by the decedent per se, but was filed with the court as a handwritten will. 

Facts & Procedural History

The decedent passed away without a will. His cousin thus asked the probate court to name her and another cousin as the heirs of his estate.  

A woman claiming to have had a long-term, live-in relationship with the decedent alleged that the decedent had left behind a handwritten document that she believed was a valid holographic will. She applied to enter the purported will for probate.

After a bench trial, the court concluded that the document was not a valid holographic will.  The live-in companion failed an appeal arguing that the holographic will was valid.  

About Handwritten Wills in Texas

Texas law allows for handwritten wills.  These wills are referred to as holographic wills.

A holographic will is a will that is entirely handwritten by the testator.  This means that the whole document has to be handwritten.  Partially handwritten documents will not suffice.

While the handwriting requirement is strict, the other requirements are not.  There is no requirement for witnesses to sign the holographic will, for example.  

As noted by the court in this case, the decedent may not even have to sign the holographic will.  The concept there is that the handwritten name on the will, even if included at the top of the will, can count as a signature.  The court looks to the intent of the drafter to determine whether the handwritten name can count as the decedent’s signature.  

Proving the Validity of Holographic Wills

In this case, the live-in companion was probably correct.  The document very well could have been a valid holographic will.  As noted above, the fact that the document was not signed is not necessarily fatal.  

The live-in companion lost the court case, however.  The appeals court based this on the fact that the trial court record was not provided to the appeals court.  This means that the appeals court did not have any basis to overturn the probate court’s determination. Based on the opinion, it appears that this may be because the live-in companion prosecuted the trial and appealed without the assistance of a probate attorney.

The appeals court hints at possible solutions that may have been pursued.  For example, if the decision was due to the live-in companion not being prepared for trial, they could have tried to remedy the situation by filing a request for a new trial. They could have attached the extra evidence that was omitted from trial to the request for a new trial.  If that failed, they could have filed a bill of review and attached the evidence there.  This could have created the necessary appellate record that the appeals court could have considered.  Likely, based on the facts, the live-in companion may have succeeded in their case with these extra steps.  

Evidence Supporting a Holographic Will

This begs the question as to what evidence should have been submitted.  Here are a few possibilities for types of evidence: 

  • Handwriting Analysis: Handwriting experts can compare the handwriting in the will to known samples of the testator’s writing and their report can be admitted into evidence.
  • Testamentary Intent: The courts are to look to the four corners of the purported will to determine whether the decedent intended for the document to be a will, so affidavits and other evidence that show that language in the will was intended to be a will can help. 

At trial, the probate court may also allow testimony about the execution and other circumstantial evidence.  While this evidence may not support the appeal, it can help get a favorable outcome at the probate court trial level.

The Takeaway

To be valid, a holographic wills must adhere to certain legal requirements.  This includes language in the document indicating that it is intended to be a will and that it be entirely in the decedent’s handwriting.  It also includes the decedent’s handwritten name being included, so it can count as the decedent’s signature.  As this case shows, evidence must be in the record for these cases.  Probate courts do sometimes get it wrong.  Absent an evidentiary record, it can be very difficult to get the will admitted to probate.

Our Dallas Probate Attorneys provide a full range of probate services to our clients, including helping with holographic wills. Probate is what we do. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process.We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.

Disclaimer: The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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