A terminally ill patient in Texas has the legal right to change his will, but he should be aware of several potential issues that could bring the validity of the will into question. Since the purpose of executing a will is to ensure that specific property will be distributed to specific beneficiaries, it is important that the law be followed to the tee to avoid a court challenge by disgruntled relatives.
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For a will to be valid in Texas, the person executing it must be capable of understanding and making decisions about the distribution of his property. Specifically, the Probate Code requires the person to be of sound mind and at least 18 years old, although he may be younger if he has been married or is a member of the armed forces. Therefore, if your condition or a medication you are taking affects your mental faculties, you may not be legally competent to update your will.
Even if your illness does not directly affect your ability to execute a will, a disinherited relative may claim in court that your physical fragility left you vulnerable to undue influence. The person contesting the will would need to have access to your medical records and doctor-patient communications to prove your condition at the time you changed the will. If the judge found that you changed the will due to threats or coercion from someone seeking pecuniary gain, the will may be declared invalid.
Anyone in Texas can change a will at any time. For this reason, a terminally ill patient should consider the logistics of updating his will if he is unable to travel. In some cases, a lawyer may be able to prepare an updated will on a laptop computer at your home or in the hospital. Another option available in Texas is to execute a holographic will, or one that is written entirely in your handwriting. The court will require two witnesses to verify the handwriting unless you attach a self-proving affidavit, which must be signed in your presence by two witnesses in front of a notary.
It is not necessary to rewrite the entire will if your changes are brief. In that case, you may execute a “codicil” and attach this document to the will. The codicil will specifically revoke only the provisions of the will that you want to void and substitute whatever new information you want to insert. Using a codicil reduces the time and effort involved in generating a new will. One caveat is that you must execute the codicil in the same way that you executed the will – it must be handwritten if your will is holographic or computer-generated if your will was prepared in this manner.