Estate of Hargrove, No. 04-18-00355-CV, 2019 WL 1049292 (Tex. App.—San Antonio Mar. 6, 2019, no pet. h.).





Testatrix executed a will on February 13, 2017. The next month on March 31, 2017, she executed a codicil to a will she executed “in the Summer of 2016.” The trial court refused to admit the codicil and its republication of the prior will holding that the codicil did not make a sufficient reference to a prior will.


The appellate court affirmed. The court explained that the codicil was not referencing the February 2017 will but rather one executed the prior year. No evidence was introduced with regard to the contents, or even existence, of the prior will. The court concludes, “The Codicil purporting to modify that nonexistent will therefore has no validity or effect.”

Comments: Even though the parties could not locate the prior will, I think the codicil should have been effective to the extent is changed provisions of the February 2017 will. In effect, the codicil still revoked by inconsistency certain terms of 2017 will. Alternatively, the parties could have sought reformation and attempted to prove the reference to the will as being executed in 2016 was a scrivener’s error. See Estates Code § 255.451.


Moral:  If at all possible, avoid the use of codicils. If a codicil is nonetheless used, be certain to correctly reference the will which the testator is amending.