Writing a valid will is a critical part of estate planning. In it the testator, the person writing the will, can specify exactly which assets will go to whom. The will also identifies who will be the executor of the estate, the person or persons responsible for carrying out the will and managing taxes, debts, or other financial issues tied to the estate. Many people believe that dated, handwritten changes are sufficient to update a will, but such edits must be made in a particular way, or they may not be valid.
Amending a Will
An amendment to a will, also known as a codicil, is not unusual. Relationships and situations change over time, or perhaps a beneficiary has died, and the testator needs to update the will to reflect those changes. While it seems simple enough to make the desired changes, legal requirements for codicils are strict. First and foremost, the testator must have the mental clarity to make those changes. In addition, the changes must incorporate the same elements outlined in §251.051 of the Texas Estates Code, including requirements about signatures and witnesses. In addition to following the format of a will, the codicil must make an accurate reference to the original will in order to be valid.
One of the main goals for writing a will or codicil is to clarify the testator’s wishes for distributing an estate, thus avoiding painful family conflicts. Unfortunately, however, many codicils have been found by the courts to be invalid. One often-cited case involved a woman who wrote her original will in 2017, naming her daughters as co-executors of the will. Six weeks after her death, her son presented a codicil which identified him as the executor of the will. The court case that resulted hinged on two important details. First, the codicil referred to a will written in the summer of 2016. The son could not produce that particular will, and the only will available was more current one, dated February 2017. A second issue was a reference in the codicil indicating that the original will named only one executor, while the more current will named co-executors. Not surprisingly, the court did not accept the codicil. Many similar legal battles have resulted from the failure to follow proper format and/or to state intentions clearly.
Rewriting a Will
To avoid the confusion of a codicil, most lawyers suggest simply rewriting the will. The cost of doing so is relatively low, given the number of wills that lawyers draft and the advancements in technology that probate lawyers may use to facilitate the process.
A valid will, ideally without potentially confusing codicils, helps to ensure that a testator’s legacy does not involve a court battle. A probate lawyer experienced in probate law has the training and experience to write a valid will, bringing peace of mind to the testator and family members.
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