Hypothetical: Peter is trapped in the car he has just rammed into a tree. He’s alone in the auto on a deserted road with no help in sight. He’s bleeding to death and all he can think about is that he’s neglected to revise his will leaving everything to a former girlfriend and naming her as executrix. He finds an invoice for car repair in the glove compartment and turns it to the blank back. Then he searches without luck to find a pen. Just before he passes out, never to be revived, Peter manages to write a codicil to his will naming his current girl friend as beneficiary and executrix. The ink: his own blood. Will the codicil be valid?
To be valid, a codicil, as a will, must contain language that expresses a clear intent to amend a valid will and adequately expressed the changes to be made to the will. Peter’s codicil met this test. In Texas, either a will or a codicil written entirely in the decedent’s handwriting is valid as a holographic will, assuming that either the will or the codicil contains the requisite intent.
Generally, the signature on a codicil must be verified as belonging to the decedent by two independent witnesses. Here the signature in blood would be difficult to compare with Peter’s prior signatures. However, if a Texas probate court follows a Philadelphia case, In the Matter of E. Warren Bradway, the court could find that DNA tests identifying the blood as Peter’s could be used to provide the required proof that Peter was the author of the codicil.
The circumstances of this hypothetical case are, no doubt, bizarre. However, they are not completely without merit as a potential solution to a dire situation. After all, desperate times call for desperate measures. Although the better solution is to avoid the procrastination that led to Peter’s dilemma, so many people do exactly what Peter had done. Therefore, it is not beyond the pale to think of adopting the means described, if necessary as the only remedy available at the time.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.