In re Estate of Hendler, 316 S.W.3d 703 (Tex. App.—Dallas 2010, no pet.).
On the bottom of the last page of Testator’s valid attested will,
Testator handwrote a statement in which he indicated that he was now
divorced and that his prior will still exists. The trial court granted
summary judgment that this holographic material was a valid codicil and
acted to republish the will.
The appellate court reversed. The court determined that fact issues
exist regarding whether Testator had testamentary intent when he placed
the handwritten statement on the bottom of his attested will and thus
summary judgment was improper. The court explained that there are two
interpretations of Testator’s words: (1) a mere recitation of facts that
he is divorced had has not revoked his will and (2) a statement that he
reviewed his prior will with his divorces in mind and that his prior
will still states his property disposition desires. Because both
interpretations are reasonable, the trial court erred in issuing a
summary judgment.
Moral: Attorneys should warn clients not to make self-help changes to
their existing wills or prepare holographic testamentary documents
because the clients may not do so correctly.
Testator executed a valid will in 1990 leaving his entire estate to
Brother. Thereafter, Testator had two children. In 1999, he signed a
holographic statement on the last page of his will indicating that his
prior will still exists. After Testator’s death, his two children
claimed that they were pretermitted and thus each entitled to half of
Testator’s estate under Probate Code § 67. The trial court granted a
summary judgment rejecting the children’s claim holding that the codicil
acted to republish the will and thus the children could not be treated
as being born after the date Testator executed the will. In addition,
the court found that even if the children were pretermitted, they were
otherwise provided for and thus precluded from sharing in the estate.
The children appealed.
The court determined that the summary judgment holding the holographic
material to be a codicil was improper. Thus, it is possible, depending
on the outcome of a trial on the issue of the validity of the
holographic statement as a codicil, that the children were pretermitted.
The court then examined whether one or both of the children were
“otherwise provide for” so they could not take even if they were
determined to be pretermitted.
The court examined three possible ways in which Testator provided for
his children. First, Testator paid social security taxes which allowed
his children to receiving death benefits. Rejecting the reasoning in
Estate of Gorski v. Welch, 993 S.W.2d 298 (Tex. App.—San Antonio 1999,
pet. denied), the court held that Testator did not voluntarily supply
the social security death benefits because they are a product of federal
law which mandates the payment of social security taxes.
Second, the court rejected the argument that Testator’s court-ordered
child support obligations was sufficient to show that he had provided
for his children. The support order was rendered by default and the
obligation ended upon Testator’s death unlike the order in Gorski which
was entered by consent and continued after the testator’s death.
Third, the court agreed that Son was indeed otherwise provided for
because Testator named him as a contingent beneficiary on one of his
life insurance policies. The court rejected Son’s argument that a
contingent disposition is insufficient because Probate Code § 67(d)
states that the disposition may be “vested or contingent.”
Moral: A court will be reluctant to determine that a pretermitted child
was otherwise provided for unless it is clear that the testator thought
about providing for the child after the testator’s death and that the
omission from the will was not because of accident or oversight.