San Antonio Express-News
February 22, 2005

Changing/Amending a Will

copyright 2005, Paul Premack

When your attorney drew up your Will and the first Codicil, they would have been dated, signed by you, and signed by two witnesses. Additionally, the attorney would have added a self-proving affidavit to the Will and to the Codicil, each bearing a second signature from you, second signatures from each witness, and notarization.

Those formalities make the Will and Codicil easier to probate after you pass on. Texas law requires evidence to be presented in court at the time of probate to establish the validity of the documents. You are no longer available to look at the Judge and say, "Those pieces of paper are my Will and my Codicil." Legally, the self-proving affidavits fulfill that evidence requirement.

When you make a second Codicil without help from your attorney, there are several issues you must face.

First: is the Codicil you are creating legally valid? In your letter, you refer to a handwritten (holographic) Codicil. Texas law requires it to be: a) entirely in your own handwriting, b) dated, and c) signed by you. It does not require any witnesses or any notarization. You must also have "testamentary capacity" – a clear understanding of your property, your heirs and your desires on how property is to be distributed.

Second: can a holographic, unwitnessed Codicil be used to make a legally valid change to a typewritten, witnessed Will? In the case Womack vs. Woodson, the Texas courts determined that one type of Will can be changed by another type of legal Will. Hence, a witnessed Will can be amended with a holographic Will.

Third: can you revoke one Codicil with a second, later Codicil? Definitely yes, so long as the later Codicil meets all the legal formalities of being a Will. In practical terms, the second Codicil is an additional amendment to the Will that overrides changes you made in the first Codicil. The first is not revoked; it remains part of the evolution of your Will.

Fourth: will another handwritten Codicil be admitted to probate? The court needs evidence that the document is authentic. If there are no witnesses and there is no self-proving affidavit, your heirs have more trouble proving the validity of the Codicil after you die. A handwritten change may end up being more expensive and time consuming than going back to your lawyer for a witnessed, self-proven Will.

A Will with several Codicils can be hard to understand and their complexity may conceal your true intentions. I rarely create Codicils anymore. Instead of writing another Codicil you should consider revoking every Will or Codicil you have ever made by starting fresh with a brand new, straightforward Will.