A recent case from the Austin Court of Appeals, Wilson v. Franks, highlights the requirements for a handwritten (“holographic”) will to be valid in Texas. [Read Opinion here.]

Image by Carolyn Booth 

Background

When Robert Franks died, his cousin, Susan Franks, asked the court to declare her and another cousin as Robert’s heirs and that he died without a will.  Valerie Wilson, who claimed to have a long-term, live-in relationship with Robert, objected and applied for the court to probate a handwritten document she claimed was a holographic will.  Susan objected to the application.

The document was a single sentence handwritten on a piece of paper that said, “If I Robert Franks is found dead alll I have goes too to Valarie Wilsooon.” In addition, Wilson also submitted a Permanency Conference Plan in a separate child protective services proceeding involving her grandchild where she claims Robert listed himself as “step grandfather” to the child as evidence of how Robert represented his relationship with Wilson. Wilson also had two witnesses willing to testify that they believed the will was in Robert’s handwriting, but the court did not allow the testimony because it found the writing did not meet the requirements of the Texas Estate Code for holographic wills.

The trial court held a hearing and denied Wilson’s application because it did not meet the legal requirements of a valid will.  Wilson appealed.

Applicable Law

Texas law provides that valid wills may be either handwritten or typewritten.

Signature

All wills must be signed by the testator or another person signing on the testator’s behalf.  Handwritten wills must be wholly in the testator’s handwriting.  The signature may be informal and the location of the signature “is of secondary importance if the maker intended the written name or mark to constitute a signature expressing approval of the instrument as the maker’s will.”  Courts have admitted handwritten wills where the individual’s name was written only near the beginning of the document because the court considered the writing of the name in the introductory passage to be the decedent’s signature.   “While courts are lenient on location and form of signature, the maker must intend that his name or mark constitute a signature, i.e., that by the signature the maker expresses approval of the instrument as a will.”  Unlike typewritten wills, no witness signatures are required for a valid handwritten will.

Intent

All wills must be executed with testamentary intent.  This depends on the person’s intent to create an irrevocable disposition of his or her property to take place after their death.  The intent of the signor must be determined from the language used within the four corners of the document offered for probate.

Court of Appeals Opinion

The Austin Court of Appeals affirmed. [Read Order here.]

While the document did contain Robert’s handwritten name and state that after his death, all he has goes to “Valerie Wilsooon,” the court held that the record did not satisfy the requirements of a valid will.  In this document, the name was printed and the F in Franks was lowercase. The court compared this to is signature in the Permanency Conference Plan where “Robert Franks” signature was written with capital letters and in cursive.

The appellate court held that viewing this in the light most favorable to the judgment, the trial court should be affirmed. The document offered by Wilson did not constitute a valid will under Texas law and could not be admitted to probate.

What Happens Next?

No petition for review was filed before the Texas Supreme Court, meaning this decision stands.

Key Takeaways

This case is a good reminder about the importance of ensuring a will is executed in accordance with Texas law.  Of course, I always recommend using an attorney to draft a typewritten will that meets all required formalities, addresses all probate assets, and is property signed by the testator and two witnesses.

If, however, someone chooses to handwrite a will, it is critical to ensure that the will meets the Texas Estate Code requirements to be valid.  The person must write the will completely in their own handwriting, the will must be clear that they intend this document to dispose of assets after death, and the testator must sign the will.  Failure to do any of these things may result in the will being held invalid.

Whether a will is valid or not can have extreme consequences in what happens to someone’s assets after their death. In this case, had the handwritten document been done in accordance with Texas law to be a valid will, Wilson would have inherited all of Robert’s probate assets.  Because it was held not to be a valid will, the court will proceed as though Robert died intestate and his heirs will be identified and they will inherit all of his probate assets.