Holographic Wills Flashcards
Are oral wills legal in TX?
Oral wills made on or before September 2007 are not valid. All wills must be made in writing.
What is a holographic will?
It is a handwritten, unwitnessed, but signed will that is “wholly in the handwriting of the testator.”
*This includes a handwritten codicil that is signed to accompany a typewritten, witnessed will.
T handwrites and signs a will in Oklahoma. Then T moves to Texas and years later, T dies. Is this holographic will enforceable in TX probate court?
Yes. Even if the holographic will would not have been enforceable where written, the law of the state of domicile at death controls.
Is this a valid will: “Mother takes all, X”
Yes, this is a valid will if handwritten and wholly in the testator (X)’s handwriting. The X is a valid signature.
If a holographic will is ambiguous, can extrinsic evidence be admissible on the issue of the testamentary intent?
Yes. For instance, extrinsic evidence to testamentary intent could be handing a document to someone and saying, “Here’s my will.”
Does a valid will have to be dated?
No. TX does not require holographic wills to be dated.
How do you prove a holographic will?
You must have two people to testify that it is in her handwriting, she was older than 18 when signed, and that she was of sound mind.
“I, Mary Jones, leave my Toyota and Blackacre to _______, and all the rest to my sister sue.”
________ = HOBIE GATES in blockprint
Is this an example of a valid will?
No. This is a holographic will ALMOST wholly in Mary Jones’ handwriting. She has signed the will. But the first recipient’s name is not in Mary’s handwriting and so the entirety of the will is not enforceable.
Is a holographic will invalidated because the testator did not completely strike out the address on the letterhead?
No. The surplusage rule applies: extraneous printed words that are not necessary to complete the will or its meaning (such as part of a letterhead address) can be disregarded.
In a signed letter, T tells M: “I will send you $500 each month for the next five years, starting now ($500 enclosed).” But two weeks later, T dies.
Is this a holographic codicil to T’s will?
No. To be a will or codicil, it must be intended to take effect at death. A document that is operative during T’s lifetime cannot be a will or codicil.
BUT this letter could be enforceable as a promissory note if M gave consideration.
Your client is in a sudden accident and asks you to write a will by his hospital bedside. How do you help your client?
You should write the will per the client’s instructions then sign for the client (proxy signature) and find two witnesses to attest onsite.
A will must be signed by a testator, or signed for him by another person:
A will must be signed by a testator or for him by another person by his direction and in his conscious presence. To be within the testator’s conscious presence, the testator must have either actually seen 3rd party sign for him or been in such a position that he could have seen the signing by some slight physical exertion on his part.
