Crafting and signing a will provides comfort that a testator’s wishes will be honored after their passing. However, life circumstances may necessitate updates to even the most well-designed estate plan. Can a will be changed after its initial creation? The Mahan v. Dovers, 730 S.W.2d 467 469 (Tex. App. — Fort Worth 1987, no writ) helps to answer this question.
Facts & Procedural History
The decedent passed away and left behind a will. However, when the interested parties began the process to probate the will, it was discovered that he had made amendments to the will prior to his passing. The will submitted for probate named a different executrix than the one appointed in the original will signed by the testator. A dispute between the interested parties ensued.
Evidence presented showed the testator had directed his attorney to revise the executrix appointment and make other alterations. However, witnesses testified the testator never signed the revised will draft containing his desired changes.
Legal Prerequisites for a Valid Will in Texas
A will is a legal document that directs how a person wishes for their estate and assets to be administered after death. For a will to be legally valid in Texas, state law imposes several baseline requirements:
- The document must be in writing. Oral wills are invalid.
- The testator must have the mental capacity to be aware of what they are doing.
- The will must be signed by the testator.
- At least two mentally competent adults must witness the testator signing the will and sign it themselves. These witnesses cannot be any of the intended beneficiaries.
- Holographic handwritten wills signed only by the testator are also valid.
Absent these mandatory elements, Texas probate courts will declare a will void and refuse to give it legal effect. Flaws in properly executing the will or other deficiencies can likewise lead courts to deem a will invalid.
Options for Modifying a Properly Executed Will
If circumstances change following the execution of a legally valid will in Texas, the testator has two options to alter their estate plan:
- Executing a codicil – This is a supplementary legal document modifying portions of the existing will but leaving unchanged terms intact. For a codicil to be valid, it must be executed with the same formalities as required for a will.
- Drafting an entirely new will – The new will must explicitly state that it revokes all prior wills to fully replace the preceding document.
If the testator wishes to revoke a will, they may do so by invalidating it in the new one by writing a statement that invalidates previous wills. They may also physically destroy the will, and then destroy any copies of the will to prevent any disputes to arise during the probate process.
Strict Legal Requirements for Codicils and Will Modifications
Under Texas law, any changes made to a will through a codicil or amending the will document require:
- The modifications must be made in writing.
- The testator must sign the changes or codicil.
- Two mentally competent adults must witness the signing and sign themselves.
Without properly executing amendments per these mandatory formalities, attempted alterations fail. Texas courts will not give effect to purported modifications lacking the requisite formalities, even if the testator unambiguously intended the changes.
In this case, the courts ended up not accepting the will with the revisions made due to the fact that there was not enough evidence to prove that it followed state law regarding modifications on a will.
Changes Cannot Violate Public Policy
In addition to following procedural requirements, alterations to a will cannot violate public policy. For example, Texas law prohibits disinheriting a surviving spouse or heir without adequate cause. Even properly executed changes contravening established public policy may still be voided by courts.
The Takeaway
While modifying an executed will is permitted in Texas, the testator must adhere to all legal formalities when doing so. Well-meaning but defective execution of changes often results in wills or amendments being invalidated.
Our Dallas Probate Attorneys provide a full range of probate services to our clients, including helping with constructing a will. 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.
Don't miss out, get a copy today!
