A will is ambulatory, meaning that it can be changed or completely revoked by a testator prior to death. There are multiple ways to revoke a will under Texas law:
- By subsequent writing -execute a subsequent will, codicil, or declaration revoking the will;
- Destroy the will by physical act (either by the testator or at the testator’s direction in the testator’s presence).
The Texas Estates Code, section 253.002, states:
A written will, or a clause or devise in a written will, may not be revoked, 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.
How To Revoke A Will In Texas By Subsequent Writing
There are several forms of a “subsequent writing” that can be used to revoke a will under Texas law.
The testator can execute a new will, a codicil, or a declaration expressing the testator’s intention to revoke the will.
No matter which form of subsequent writing is used, the subsequent writing must be in writing and signed with the same formalities required for a will under Texas law.
Most Texas probate lawyers would agree that revoking a will by a subsequent writing is the safest way to make sure that your testamentary wishes are honored.
How To Revoke A Will In Texas By Physical Act
A will can also be revoked under Texas law by physical act, i.e. destruction.
A will can be destroyed by tearing up the will, cutting up the will, shredding the will, burning the will, or crossing out the signature line.
The physical act of destruction must be coupled with the intention to revoke the will. For example, if you were shredding junk mail and accidentally put your will through the shredder, this would not be an effective revocation, because the physical act of destruction was not coupled with the intention to revoke the will.
A testator is also required to have the mental capacity to revoke the will under Texas law.
Can I Revoke Parts of A Will By Crossing Out Portions?
No, a Texas formal will cannot be partially revoked by crossing out certain sections that you do not want to have effect. Attempts to change parts of a will by crossing portions out are generally held to be ineffective to revoke any part of the will. Instead, any changes made after the will is executed and witnessed are of no effect.
To make changes to part of a will, without revoking the will, you would execute a codicil in accordance with the testamentary formalities required by Texas law. A codicil changes a portion of the will, perhaps the beneficiaries or their shares, without executing a brand new will.
Revocation of A Will By Operation of Law
Sometimes Texas law steps in to effectively revoke a portion of a will.
For example, divorce automatically invalidates bequests to the former spouse in a Texas will, which we have written about here.
If a testator has a pretermitted child (a child born or adopted during the testator’s lifetime or after death, and after the execution of the testator’s will), that child might inherit under the will depending on the existence of other children and whether or not the pretermitted child is “otherwise provided for” under Texas law. We have written about pretermitted children here.