In Mynard v. Degenhardt, a decedent’s grandson offered a will to probate, and his aunt opposed that admission due to an alleged holographic codicil that allegedly revived a previous will. No. 14-22-00773-CV, 2023 Tex. App. LEXIS 9640 (Tex. App.—Houston [14th Dist.] December 28, 2023, pet. filed). The decedent executed multiple wills between 2016 and 2018. The last will was executed in July of 2018 and disinherited two of her children and left everything to one child and a grandson. After that, she made a holographic notation on the earlier 2016 will regarding selling a lot referenced in the will. The aunt argued that the holographic codicil revived the March 2016 will and revoked the July 2018 will. The trial court admitted the will offered by the grandson, and the aunt appealed.

The court of appeals first concluded that the handwritten note was not a codicil:

“A codicil is a testamentary writing that is supplementary to an earlier testamentary writing and must be executed with the formalities required in the making of a will.” These formalities include, as applicable here, that the codicil must be wholly in the testator’s handwriting and signed by the testator in person. Additionally, a codicil must make sufficient reference to the will it amends, and it must express testamentary intent. Testamentary intent is the intent to create a revocable disposition of property that will take effect after death. “The introduced writing must contain an explicit statement declaring that the writings are wills or codicils or that the property division will take place only after the testator’s death.” Construction of a testamentary instrument is a question of law when the instrument is not ambiguous. However, if it is unclear from the language of an instrument whether its maker created it with testamentary intent, we may consider evidence of surrounding facts and circumstances.

Here, the August 2019 addendum stated, “Lots in Zent Subdivision #’s 12, 13, 14 be given have been sold to Robert Winnon Lee, my brother.” Cynthia contends that Jackie’s testamentary intent is evidenced by the stricken language that the Zent lots would be “given” to her brother. Cynthia effectively asked the trial court to ignore that this language was stricken and replaced with “have been sold.” Cynthia testified that the “original” language—i.e., “be given”—appeared to have been written with a “fine ball point pen,” while the “have been sold” language appeared to have been written “in a thicker, maybe like a medium point pen.” Although it is true that the “have been sold” notation appears bolder than the struck through words, there is simply no way to tell when the strike-through and substitution occurred. As written, the August 2019 addendum expresses no testamentary intent and instead reflects merely that some of Jackie’s property was sold to her brother… In short, we agree with the trial court that the August 2019 addendum was not a codicil, and we hold that the trial court did not abuse its discretion in refusing to admit the August 2019 addendum to probate. Because we conclude that the trial court did not err in rejecting the addendum as a codicil, we need not address Cynthia’s arguments concerning whether the addendum revived Jackie’s earlier March 2016 will or revoked the July 2018 will.

Id. The court then addressed the aunt’s arguments that the trial court erred in finding that the July 2018 will was not the product of undue influence. The court held that there was sufficient evidence to support the trial court’s findings:

That Pamela and Charles moved in with Jackie and were living with her as her health was declining shows that they had the opportunity to exert influence on her as to the execution of the July 2018 will… But opportunity to exert influence is not alone sufficient to show undue influence… Regarding whether Charles or Pamela actually exerted an influence over Jackie, the record contains scant evidence. For example, there is no evidence that Charles or Pamela ever asked or urged Jackie to change her will to favor them. Instead, Cynthia’s argument that they exerted an undue influence is based on circumstantial facts, such as that Pamela and Charles were Jackie’s caretakers, the will was drafted only a few months after they moved in to help care for Jackie, and that Charles purportedly “authored” the will. Although Jackie’s physical health was declining, there was no evidence that, at the time she signed the will, her mental health was in decline or that she was mentally incapacitated in any way. Charles described Jackie as a “headstrong” person. Similarly, Barton, a disinterested witness, testified that Jackie was a “strong lady” who “had her own way of doing things.”

Id. There was also evidence that the decedent dictated the terms of the new will to the grandson and confirmed that the language was correct and what she wanted done. The court held: “Because there is no evidence that the existence and actual assertion of influence upon Jackie actually overpowered her mind or desires, we need not analyze the evidence pertaining to the third element of undue influence—whether Cynthia established that Jackie would not have made the challenged will but for the influence.” Id.

Interestingly, the trial court excluded evidence of a diary from a caregiver and her testimony concerning the decedent’s testamentary intent in 2020 (two years after the will at issue was executed). The court of appeals affirmed the exclusion of the evidence as irrelevant as it was outside the time period of the execution of the will:

Although Barrientez’s testimony and journal may have shown Jackie’s state of mind after April of 2020, it has no bearing on her state of mind in July 2018, when she executed the will admitted to probate. Cf. In re Est. of Spiller, No. 04-22-00050-CV, 2023 Tex. App. LEXIS 2129, 2023 WL 2733403, at *5-6 (Tex. App.—San Antonio Mar. 31, 2023, no pet.) (mem. op.) (medical records concerning testator’s mental state from July 2005 did not raise fact issue as to whether testator was unduly influenced into signing will in November 2006). Thus, this evidence has no “tendency to make a fact more or less probable than it would be without the evidence,” Tex. R. Evid. 401, and the trial court did not abuse its discretion in excluding it.

Id. The court of appeals affirmed the trial court’s admission of the will into probate.