As surprising as it might sound, in Texas, you can create your own, legally enforceable, handwritten will if you follow a few simple steps:
- The will needs to be written solely in your handwriting, and
- The will needs to be signed by you.
Sounds simple, right? Unfortunately, like most things, writing a legally enforceable will by hand is much easier said than done. Thanks to years of judicial examination and interpretation of Texas laws concerning hand-written wills (or holographic wills, if you prefer the fancy legal term), our courts now look for another essential element in determining whether or not your hand-written will is legally enforceable: testamentary intent.
What is testamentary intent?
At a glance, it may seem like proving testamentary intent would be easy. After all, you intentionally created a list of gifts giving your possessions to your loved ones after your death; you wrote it all in your own handwriting; and, you signed it. That should check all the boxes for a legally enforceable holographic will, shouldn’t it? To use a lawyer’s favorite word: maybe.
In order for a hand-written document to be considered a legally-binding holographic will, Texas courts have defined testamentary intent to mean that the author of the document would need to have intended for that writing to act as a will and to be the instrument to actually make the disposition of his property. When looking for proof of testamentary intent, courts often look to the language used in the document. For example, it would easy for a court to determine that the hand-written document was intended to act as a will if the document was titled “Last Will and Testament,” or if the document stated something to the effect of, “I intend for this document to be my last will and testament.”
But what happens when the document doesn’t have that obvious language? If that’s the case, then it may be harder to prove that testamentary intent existed. To use an example, a Texas court found that even though a person:
- made a list of gifts he wanted to offer of his possessions at his death
- wrote the list in his own handwriting
- signed the written list
. . . the court didn’t find sufficient evidence that the author intended for the document to act as his will. Rather, they found its intention could have well been just a simple notation or memorandum of his wishes. Confusing, right?
The Alternative to a Handwritten Will
Simply put, unless the author of the hand-written document uses obvious language that clearly indicates their intention for that document to act as their will, you can expect the court, or perhaps someone contesting the validity of the will, to bring up the issue of testamentary intent. Knowing this, how can you ensure that these issues never impede your loved ones when the time comes to probate your will? Easy! Have a lawyer prepare your will for you. Not only can an attorney make sure that your will contains the necessary testamentary intent, but they can also make sure to plan around all of your needs and other probate considerations, which is another article in and of itself.
Lovelace Law’s estate planning attorneys specialize in preparing wills and other similar documents that help take the guesswork out of ensuring your will’s validity is the last thing your loved ones will have to worry about. If you have never made a will, or your current will is outdated or needs to be updated, we would be happy to help!