In re Estate of Hendler, 316 S.W.3d 703 (Tex. App.—Dallas 2010, no pet.).


Testamentary Intent


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.



Pretermitted Child


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.