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Dispute leads to handwritten will litigation

Are handwritten wills valid in Texas? Tiffany Lashmet discusses a recent case in her Texas Agriculture Law Blog and emphasizes the recommendation to hire an attorney when creating a will.

Tiffany Dowell Lashmet, Assistant Professor and Extension Specialist in Agricultural Law

April 8, 2024

6 Min Read
handwritten will
Yaraslau Saulevich / iStock / Getty Images Plus

This case, In the estate of Marilyn Frances Martinez, pits father against daughter in a dispute over whether language in a handwritten will is a valid devise of property under Texas law.


Marilyn Martinez died of COVID in November 2020. Less than five days later (117 hours, to be precise), her second husband, Raymond Martinez, died as well. She was survived by her son, Clifton, his daughter (her granddaughter) Desiray, and Desiray’s two siblings.

After Marilyn’s death, Desiray, found a handwritten document among her belongings.  The first page of the document said that Raymond was “to get everything if I die first to include all my belongings, valuables, jewelry.”  Then it said, “I will list what special items to give to who.”  In that list, she left 69 acres in Campbellton, TX “equally to Clifton, Desiray, and Desiray’s two siblings.”  The second page lists a property on Peterson Avenue in San Antonio and says “Desi lives here.”  It then listed a property on Kingley Drive in San Antonio and said that Marilyn and Raymond “live here.”

Desiray filed a petition for declaratory judgment seeking a construction of the will with regard to the San Antonio properties. Clifton argued Marilyn did not intend to devise to the two San Antonio properties, that she merely identified who occupied them.  He argued that since the will used “no testamentary language” with regard to the San Antonio properties, she died intestate as to those properties and he is entitled to both as her sole heir.

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The trial court granted Desiray’s petition, holding that the Peterson Ave. property went to Desiray pursuant to the will and that the Kingley property went to Clifton since her husband did not survive her by 120 hours as required by Texas law to inherit.  Clifton appealed.

Applicable law

In Texas, a holographic (handwritten) will is valid if it is written wholly in the testator’s handwriting.  While a typewritten will requires two witnesses, a holographic will has no witness requirement. A holographic will should be liberally construed to effect the testator’s intent. Words used in a holographic will are construed “as a lay person would use them absent evidence that the testator received legal assistance in drafting the will or was otherwise familiar with technical meanings.”

When construing any will, a court seeks to “ascertain the testator’s intent and to enforce that intent to the extent allowed by law.” A court looks to the instrument’s language as a whole and seeks to harmonize all provisions to give effect to the will’s intent. One presumption in interpreting wills is to disfavor any construction that would render the decedent intestate (having died without a will).

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Under Texas law, a person who does not survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of the homestead allowance, exempt property, and intestate succession.

Appellate Court Opinion

The San Antonio Court of Appeals affirmed. [Read Opinion here.] The court stated it is undisputed that the will is a valid holographic will under Texas law.

Second, the court noted that Clifton is Marilyn’s sole heir.  Because her husband died three hours less than the 120-hour requirement, he is treated as having pre-deceased Marilyn.  Thus, he was entitled to inherit any property not devised by her will that passed through intestate succession.

Next, the court turned to the issue of the San Antonio properties.  Clifton claimed the document contained no testamentary language with regard to the San Antonio properties.  It merely listed them and who lived there.  Thus, he argued, they should pass to him by intestate succession.  He contrasts this language with the language devising the Campbellton property that clearly showed intent to devise.  Desiray argued that the listing of the address and who lived at each property, along with the prior page saying that Marilyn intended to list special items to give to certain persons demonstrated her intent to devise the properties to the persons living in them as listed in the will.

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The court sided with Desiray.  “In reviewing the will’s language, considering its provisions as a whole, and attempting to harmonize them so as to give effect to [Marilyn’s] intent, it is clear Marilyn intended to devise the property she listed in the will.”  The court noted that Marilyn was a layperson and there was no evidence she received legal assistance or was familiar with technical legal meanings. Although this will was “not a paragon of precision” the court reasoned that the will plainly states her husband was to receive all belongings and then provided that she would list special items to be given to others.  Although she did not state whom the San Antonio properties would be devised, she did list them and identify by name who lived there.  The court concluded this was sufficient proof of her intent to devise the properties to the listed persons who occupied them. Clifton’s interpretation would have rendered Marilyn listing these two properties as useless.

Thus, the court affirmed the trial court holding that Marilyn left Desiray the Peterson Avenue property by will, and that because Raymond is deemed to have predeceased her by law, the Kingley property passed through intestate success to her only heir, Clifton.

The deadline to appeal has not yet passed, so it is possible that Clifton could seek review from the Texas Supreme Court.

Key takeaways

Although this case is fact-specific and not overly complex, it offers some key reminders when it comes to Texas estate law.

First, remember that wills can be handwritten if they are done completely in the testator’s own handwriting.  Typewritten wills must be signed by the testator before two witnesses.  Verbal wills are invalid under Texas law.

Second, most people are likely not familiar with the 120-hour survival rule.  This does not often come into play, but when someone who is included in a will dies within 120 hours of the testator, that person is deemed to have predeceased the testator.  That can have major impacts on where property goes at someone’s death.  Here, because Raymond was deemed to predecease Marilyn, Clifton inherited the Kingley property.  Had Raymond lived the additional three hours and survived by 120 hours, the property would have passed by Marilyn’s will to Raymond and would have been disposed of either under Raymond’s will or to his heirs.  This is a particularly important consideration for blended families or people with second marriages to consider when making an estate plan.

Third, this case illustrates the importance of having a will that clearly devises property per the testator’s wishes.  Had this will been written differently, this entire lawsuit (and the time and expenses that went along with it) could have potentially been avoided. This is why I always advise people to hire an attorney to draft a will.  It may be an added cost up front, but it can save substantial money if it avoids a dispute down the road.

Read more about:

Estate Planning

About the Author(s)

Tiffany Dowell Lashmet

Assistant Professor and Extension Specialist in Agricultural Law, Texas A&M AgriLife Extension

Tiffany Dowell Lashmet is Assistant Professor and Extension Specialist in Agricultural Law, Texas A&M Department of Agricultural Economics.

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