Podcast – revoking a will in Texas

Podcast – revoking a will in Texas

Podcast added!

The topic is “Revoking a will in Texas”

Whether a will has been revoked or not is an issue that comes up in will contest. A recent Texas case showed some of the problems that can arise when one party claims that the will has not been revoked and the other party claims that it has been revoked.

A written will may not be revoked in Texas, except: by a subsequent will, codicil, or declaration in writing that is executed with like formalities; or, by the testator destroying or canceling the same or causing it to be destroyed or canceled in the testator’s presence.

In either case, a testator must have testamentary capacity to revoke a will just has he must have testamentary capacity to execute a will.

When a testator has a will in his possession at his death and the original will cannot be found, there is a presumption that the will was revoked. The interplay between the presumption of revocation and the requirement of testamentary is the subject of the case we discuss in this podcast.

 

 
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above.

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How To Revoke A Trust In Texas

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How can you revoke a trust in Texas?

In a recent case in Texas, a mother and father had a trust for the benefit of their two children. The mother died. The father later remarried and had two additional children. The father attempted to revoke the first trust and made provisions for the property to go to his four children, share and share alike. When the father died, one of the first two children asked the court to declare that the revocation of the first trust was invalid. The court agreed stating: (more…)

Probating A Newer Will

no-contest-s-Fotolia_10685421_XSEstoppel

I’ve written about how accepting benefits under a will may prevent or estop a person from contesting that will. In a 2014 case a trial court ruled that a party was estopped from probating a newer will and from contesting the older will. The trial court held that the party had accepted benefits under the older will and that estopped him from probating the newer will. The trial court also held that probating the newer will was a contest of the older will which the party could not do because of his acceptance of benefits under the older will.

Accepting Benefits Under Older Will

In this case the San Antonio Court of Appeals overturned the trial court’s ruling that a party could not probate a newer will (more…)

Can you probate a will that has been revoked?

In some circumstances, the Houston Court of Appeals says you can.

Once a will is revoked, it is revoked. It does not come back to life based on later events. The only way to bring the will back to life is to execute a new will with all of the formalities required by law.

Facts

In a case out of Houston, the testatrix executed her first will. A few years later, she had a new attorney draw up a second will which she executed. The second will revoked all prior wills (which would include the first will.) A letter from the new attorney was admitted into evidence that said that the second will had been stolen. The new attorney wrote her a letter telling her that “[i]f the original instruments were stolen, you will need to sign new original copies in order for them to be effective.” The testatrix did not sign new copies but she did hand write a revocation of the second will.

When the testatrix died, the first will was offered for probate. There was no contest so it was admitted to probate. There is a two year statute of limitations to contest a will.

Contest

Two years and a few months after the first will was admitted to probate, an application to contest the first will was filed based on the second will and the hand written revocation. They were offered for the purpose of showing that the first will had been revoked. The trial court denied the application. The court held that the second will and the hand written revocation of the second will were not being offered for probate but were being offered to contest the first will. Since more than two years had passed, no contest of the first will was possible.

File revoked will

Another group of heirs then attempted to have the second will admitted to probate. (You can probate a will within four years of the death of the testatrix. They still had time.) The court denied the admission of the second will to probate. The court held that the applicants failed to prove that the second will had not been revoked. (You have to prove a will has not been revoked when you offer it for probate.) The court found that evidence of the will being revoked was that the original was not produced for probate, that the testatrix had advice from counsel that she should execute a new will to replace the lost will and no effort was made to execute a new will. Further evidence that the will was revoked was the writing solely in the handwriting of testatrix revoking the second will.

Ruling

The court held that the will could not be offered for probate because they could not prove that it had not been revoked. The court said that it was, in reality, offered as a contest of the first will more than two years after the first will was admitted to probate. The court denied the application to probate the second will. 01-07-00733-CV.

This case illustrates again how important it is to take action quickly. Because a will that had been revoked was not contested with the time limits, the contestants lost the ability to challenge it.

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