Do You Have To Prove Up The Will, The Codicil Or Both In Texas
What is a Codicil
A codicil is a document that adds to, deletes from, or supplements an existing will. It is inseparably dependent upon that will. It must be executed with the same formalities as a will.
What Must You Prove up If You Have a Will and a Codicil
There are several situations where you have proof of a will but not the codicil or proof of the codicil but not the will. Sometimes you may just have the codicil and not have the will. Do you have to prove up the will, the codicil or both in Texas? What do you have to prove at a probate hearing to have the will and/or the codicil admitted to probate? Proof usually involves calling the witnesses to the will and/or the codicil and having them testify about the execution of them. You may also use a self-proving affidavit if one was used. In extreme cases, you may be able to prove up a will by having someone testify about the signatures on the documents. This article deals with those situations where you can prove one but not both of the documents.
Texas Cases Dealing with Codicils
If you only have a codicil and do not have the will, the codicil can be admitted to probate if it is testamentary in nature and meets the requirements of a will. “There’s nothing magical about the title “Codicil” — If the only testamentary document found after the testator’s death is titled “codicil,” it can be admitted to probate as a stand-alone will.” 895sw2375. The key phrase used by the court is “testamentary document.” If the will meets all the requirements of being a will, even though it is a codicil to a will, it can be admitted to probate.
What if you have proof of the codicil but not the will? “A properly executed and valid codicil which contains a sufficient reference to a prior will operates as a republication of the will in so far as it is not altered or revoked by the codicil; the will and codicil are then to be regarded as one instrument speaking from the date of the codicil. If the codicil … (is) validly executed and republishes the prior will, proof of the codicil will operate also to establish the will without further proof.” 320sw2660.
If you prove up the will but offer no proof of the codicil, the will can be admitted to probate, but the codicil will not be admitted. However, if there is just a mistake of inadvertently forgetting to offer proof of the codicil, the codicil can be admitted afterward. “(A)s a matter of substantive probate law a codicil may be probated after the will to which it relates has already been probated.” 04-15-00499-CV.
What if someone has possession of the will and the codicil but doesn’t like the way the codicil changes the will? Is it up to them to decide whether or not to file the codicil for probate? No, it is not. A person who has possession of the will and codicil must file those documents. Concealing, altering or destroying a will is a crime in Texas.