The Common Law

Revoking a will under Texas law

How do you revoke a will in Texas?

When a person wants to revoke their will, the Texas Probate Code provides that the testator (the person owning the will and bequeathing her property) must: 1) execute a subsequent will, a codicil (amendment to a will), or a declaration clearly revoking the will – each of these forms of revocation must be in writing and executed under the same formalities required for a will; 2) destroy the will; or 3) cause the will to be destroyed or canceled in the testator's presence. These are the exclusive methods for revoking a will in Texas.

The Texas Probate Code is a complex statute, and sometimes the case law is counterintuitive. The effect of not following the exclusive methods of revocation usually results in nonrevocation of the will. For example, efforts to change a will by obliterating or destroying some portions, but not the entire will, are generally held ineffective to change or revoke any part of the will. The general rule is that any alterations or interlineations made on a will before the testator signs it and the will is witnessed are valid, but changes the testator makes to his or her will after it has been signed and witnessed are of no effect, and the will must be probated as originally written at the time of execution. Additionally, the testator's intention to revoke a will or have it revoked, coupled with his or her belief that the will was actually revoked, is not sufficient to render revocation. For example, in one case, evidence that the testator's wife had misled the testator into believing that she had followed his direction to destroy his will was insufficient to rebut presumption of nonrevocation.

Wills and estates are a complicated area of legal practice. You should consult a lawyer who devotes a hefty portion of his or her practice to probate law before making a significant decision about your will.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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