Recent Texas case highlights issues with handwritten wills

by Russell Aldrich | December 23, 2019

Wills generally go through probate uncontested. However, several valid reasons exist to declare a will invalid

Texas law recognizes a handwritten will as legally valid. Handwritten wills are known as “holographic wills.” However, holographic wills increase the odds of a will contest or probate litigation, especially if the handwritten will leaves all or most assets to a single beneficiary at the expense of others.

A recent case out of Travis County District Court is a good illustration of this. In the case, the plaintiffs were 15 beneficiaries who contested a holographic will created by their deceased relative. The plaintiffs contended that the will was not in their deceased relative’s handwriting, and that the will should have been declared invalid by the Probate Court because it was fraudulent. The plaintiffs alleged that the main beneficiary of the will wrote it herself, not the grandmother, as the main beneficiary claimed.

The court, however, upheld the will as valid. Later, the plaintiffs secured the expert testimony of a handwriting expert, who identified the holographic will as a forgery. The plaintiffs cannot reopen the case in probate. However, the plaintiffs are seeking damages from their first attorney upwards of $1 million, in addition to exemplary damages and court costs, because they believe their first attorney committed malpractice by not seeking the expert testimony of a handwriting expert at the outset of the case. The case is Amaro v. Gilman & Associates.

Valid reasons to contest a will

While the outcome of Amaro remains to be seen, it is a good example of one of the ways beneficiaries can contest a will in probate. The executor of an estate must distribute a will according to the wishes of the deceased, as expressed in the will. This generally occurs without a contest; the vast majority of wills pass through probate without any issue. However, there are several reasons why a court may declare a will invalid, besides fraud:

• Undue influence
• Mental incapacity
• A subsequent will that invalidates a previous one

Undue influence occurs when one person uses their position or relationship in order to exert pressure to change a vulnerable person’s mind regarding a will. A common example of this is a caregiver threatening to withhold care unless the person changes his or her will to give more to the caregiver.

In addition, in order to validly execute a will, a person must understand what he or she was creating at the time the will is drafted. Undue influence or mental incapacity, such as dementia, can invalidate a will.

Finally, a will may be declared invalid if there is a subsequent will that renders the previous will obsolete. Updating a will regularly is a good idea, as life changes may make a previous will outdated. However, updates must be done carefully to avoid confusion regarding which will is the most recent, and therefore the valid will.

Contesting a will

A handwritten will is more likely to be contested than a will executed with the help of an attorney. However, if a holographic will is written completely in the deceased handwriting, signed, accounts for all property, declares an executor, named the “Last Will and Testament” of the deceased, and there is an affidavit attached to the will that declares the writer is of sound mind, then it is possible a holographic will can go through probate uncontested.

For help in contesting an invalid will, contact the experienced probate attorney Russell Aldrich to discuss legal options moving forward.