Testamentary Intent
Testator handwrote a statement on an existing Will in which he indicated that he was 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.
take away: Attorneys should advise clients not to make changes to their existing wills on their own nor prepare their own holographic testamentary documents because the clients may be effective