Case Addresses Requirements for Valid Codicil to Will

A recent Houston Court of Appeals (1st District) case, In re the Estate of Billy Joe Wlecyk, offers some important considerations to consider with regard to executing a will and codicil.

Photo by sydney Rae on Unsplash


Billy Joe Wleczyk died on January 30, 2018.  Two days later, his daughter, Sharon Reed,  filed an Application for Probate of Will and Letters Testamentary stating that Billy Joe resided in Brazoria County at the time of his death.  The Application further provided that he executed a will in 2001, which was ratified in July 2016, and was never revoked.

The 2001 will named Reed as executrix, identifies Billy Joe’s 4 children, and provides that property be given to his children in equal shares.  At the bottom of the page, after the self proving affidavit, there is a  handwritten note that says “This will still stands July 2016” followed by Billy Joe’s signature.  This 2016 signature was notarized by Ms. Miller.

Twelve days after Reed filed her Application, Barbara Daniel filed a counter-application to probate a will  that Billy Joe executed in 2005.  The 2005 will names Daniel as independent executrix and directs that each of Billy Joe’s children get $25 with the remainder be given to “my good friend Barbara Daniel.”

She alleged that the 2005 will remained in effect and she challenged the effectiveness of the 2016 handwritten notation at the bottom of the 2001 will as being invalid to qualify as a new will or publication of a prior will.


Several witnesses testified at the trial on the will contest.


Ms. Miller testified about notarizing the handwritten notation in 2016.  Ms. Miller has worked at the sheriff’s department for over 20 years and holds a notary commission in connection with her job.  Reed also works at the sheriff’s department, but Miller testified the two do not socialize or go to each other’s homes.  Miller said she met Billy Joe twice prior to notarizing the document.

Miller testified that on the day the notation was made, Reed was at her brother’s house, and she called Miller to come notarize the document because Miller lived in the same town and was a notary. When Miller arrived, present were Billy Joe, who had been working in the hayfield next to the home, Reed, and Reed’s brother, Allan, and sister in law, Pamela, who owned the home.   The group stood in the driveaway while Billy Joe wrote the wording and signed his name.  Miller testified that after the writing, Billy Joe said, “This is the one I want to use.”  Miller said the weather was hot and Billy Joe may have been a bit agitated, but he seemed to be of sound mind and body.  Miller notarized the signature.


Reed testified that she was Billy Joe’s daughter.  He was bailing hay when he died at age 77. Reed testified that Daniel was Billy Joe’s “live-in friend.”  Reed said she was present in 2016 when Billy Joe wrote the 2016 note on the bottom of the 2001 will.  She said Billy Joe called her and asked if she could “bring him the will” because he needed to write something on it.  Reed removed the will from her gun safe and brought it to Billy Joe at her brother’s home.


Pamela testified that she had been married to Allan for 6 years.  On that day in 2016, she said she drove her golf cart to the field to bring Billy Joe and Allan to the house to get something to drink.  When they got to the driveway, she saw Billy Joe go to Reed’s car, where she handed him some papers, and he wrote on them.  She did not know what was going on, but said no one told Billy Joe what to do, and that he appeared to be taking this action of his own free will.  She said he was of sound mind and body.  She said she had seen Billy Joe’s handwriting from a few checks and birthday cards he had given them, and she believed it to be his signature on the handwritten notation.  She said that not long before this happened, Daniel told her that Billy Joe had tried to make her move out of his house, how mean he was, and that she wanted to leave.


Allan testified that he was present when the will was signed, Billy Joe was of sound mind and body, and he did not see anyone pressure Billy Joe into writing the note.


Wendy Sue Carlson, a handwriting expert, testified that she compared the signature on the note on the 2001 will with 36 other samples of Billy Joe’s signature.  She testified that the 36 samples, the 2001 will, and the 2005 will were all signed by the same person, but that the written note from 2016 was signed by a different person.


Daniel claimed that on the day Billy Joe allegedly made the notation, he was hauling hay on County Road 25 and could not have done so.

Trial Court Ruling 

The trial court entered an order admitting the 2001 will and the 2016 codicil to probate and appointing Reed as executor.  The Court found that the 2016 note and signature constituted a legally executed holographic codicil, reviving the 2001 will and impliedly revoking the 2005 will.

Appellate Court Opinion

The court affirmed the decision of the trial court to admit the 2001 will and 2016 codicil.  [Read full Opinion here.]

Validity of Execution

The court noted that a will may be revoked by a subsequent will, codicil, or declaration in writing “executed with like formalities.”  A codicil that contains a sufficient reference to a prior will operates to republish the will so long as the codicil does not alter or revoke it. If the reference is sufficient, the codicil and will are regarded as one instrument speaking from the date of the codicil.

The court held that the “like formalities” required are those necessary to establish a valid will, not that the method of execution for the codicil must be the same as the initial will.  Here, although the initial will was typewritten and signed by two witnesses, that did not require that a later codicil could not be handwritten, so long as it met the legal requirements to be recognized as a valid holographic codicil.

In order to be valid, a handwritten will or codicil must be wholly written in the testator’s handwriting and signed by the testator.  “The record supports the trial court’s finding that the 2016 codicil meets these requirements.”  Miller, Reed, and Allan all testified they watched as Billy Joe write and signed the codicil.  Pamela also saw the group standing near Billy, who appeared to be writing.  Daniel testified that Billy Joe could not have been at the house that day, while the other witnesses testified that he was.  The appellate court deferred to the trial court’s resolution of this conflicting evidence.   Thus, the 2016 codicil was validly executed.

Lack of Reference to Other Wills

Daniel also argued that the codicil was invalid and ambiguous as it did not make reference to either the 2001 or 2005 wills.  The Court disagreed.  The note was made on the 2001 will and referred to “This will.”  This is reasonably understood to mean the 2001 will upon which it was written.  Thus, the 2016 codicil made sufficient reference to the 2001 will, which sufficiently revives that will as of the date of the codicil. A formal statement revoking the 2005 will was unnecessary.


Daniel relied on Carlson’s testimony that the handwriting of the codicil was not Billy Joe’s.  The trial court considered this evidence, along with the four other witnesses, including the notary, who saw Billy Joe sign the document that day.  The fact finder is not required to accept Carlson’s testimony over that of the other witnesses.  A layperson who is familiar with a person’s handwriting may authenticate it.


Daniel also argued the codicil should not be admitted because no disinterested witnesses testified.  However, as the court noted, the Texas Estates Code does not require two disinterested witnesses prove a handwritten will.  No witnesses to the execution of a handwritten will are required at all.  It maybe proven by two witnesses who can identify the person’s handwriting.  Further, there were disinterested witnesses, Miller (the notary) and Allan’s wife, neither of whom inherited under either the 2001 or 2005 wills.

Based on this, the court of appeals upheld the trial court’s decision.

Key Takeaways 

This case illustrates how disputes over wills can be problematic, especially when there are multiple copies of wills making differing dispositions of an estate.  Although the court upheld the handwritten codicil from 2016, it would likely have been better for there to have been a more formal statement–whether handwritten or typed–to expressly state that Billy Joe intended to revoke the 2005 will and reinstate the 2001 will.  This type of statement could have been helpful to avoid the time and expense of litigation.

This case is also a good reminder of the rules surrounding will executions in Texas.  Wills may be either handwritten or typewritten.  Handwritten wills must be made completely in the testator’s own handwriting and signed by the testator.  No witnesses are required, although in this case, the witnesses and notary were likely key to the 2016 codicil being upheld.  For typewritten wills, they must be completely typewritten and signed by the testator before two witnesses.  The witnesses need not read the will, but merely need to see the testator sign the document.   In selecting a witness, a testator should have at least one (preferably two) disinterested witness who will not inherit under the will.

Finally, the case provides good information regarding codicils.  When a person seeks to amend his or her will, that may be done by codicil.  As noted above, that codicil must follow the same formalities as a will–meaning it needs to either be entirely in the testator’s handwriting or typewritten and signed by two witnesses–and it must clearly identify the will to which it applies and intends to modify.

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