Signing a Will in All the Wrong Places

Signing a Will in All the Wrong Places

Where do you sign a Texas will?

In a recent case, 01-20-00073-CV, a Texas will was offered for probate. The trial court did not admit the will to probate because the testator just initialed six pages and did not sign on the seventh page where the document had a space for his signature. The trial court determined that the will was not properly signed. The proponent of the will appealed.

Initials are OK in Texas

The court of appeals reversed the trial court and admitted the will to probate even though it was initialed not signed. The appeals court held that:

“Except as otherwise provided by law,” a will must be: (1) in writing; (2) signed by the testator in person;[3] and (3) “attested by two or more credible witnesses who are least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.”..”Texas courts have been lenient regarding the location and form of a ‘signature.'”…A signature may be informal, and its location of secondary importance, if the maker intended his or her name or mark to constitute a signature expressing approval of the instrument as the maker’s will…”it is necessary that the maker intend that his name or mark constitute a signature, i.e., that it expresses approval of the instrument as his will”…The facts and circumstances surrounding the instrument’s execution may be considered in determining whether the maker intended a testamentary disposition of his property…”The key inquiry, however, remains whether the testator intended the mark to constitute an expression of his testamentary intent.”

Considering this case law, we conclude that Wendell’s initials on pages one through six of his will are sufficient to satisfy Section 251.051’s signature requirement, just as any other mark made by him would be, so long as he “intended the mark to constitute an expression of his testamentary intent.”

The court went on to say that the opponent of the will did not put on any evidence to the contrary.

I have a short podcast on the signing of a will.

Presumption of Undue Influence

Presumption of Undue Influence

Presumption of Undue Influence

A person who is an Executor, Administrator, Trustee, or who has a Power of Attorney is a fiduciary. A fiduciary must act in the best interest of the beneficiaries and show that each of his actions was in the beneficiaries’ best interest. When an action benefits the fiduciary in any way, there is a presumption of unfairness, and the fiduciary may be liable.

David Johnson, an attorney who writes on fiduciary litigation, has an article that addresses the case of In re Estate of Klutts, 02-18-00356-CV, (Tex. App.—Fort Worth December 19, 2019, no pet. history). In Klutts, a son who had a power of attorney helped his mother prepare a new will which benefited the son. When the mother died, he attempted to probate the new will. However, his siblings contested the will. The son asked the court to dismiss the contest because his siblings had no evidence that he unduly influenced his mother. The trial court agreed with the son and rejected the will contest. On appeal, the appeals court reversed.

The appeals court held that because he had a power of attorney, the son had to overcome the presumption of undue influence. Thus, the burden was not on the siblings to prove undue influence but on the son to disprove it.

How do I claim my inheritance Texas

How do I claim my inheritance Texas

Claiming an inheritance in Texas

An inheritance can never compensate for the death of a family member. But inheritance is not about greed; it is about custody and control of your property.

Claiming an inheritance in Texas is usually straightforward if you are a named beneficiary in the will. The executor or administrator named in the will and appointed by the court gathers the property, pays the debts of the estate, and distributes the property to the beneficiaries. As a beneficiary, you do not normally need to do anything.

Problem – no will

Problems develop when there is no will, or you feel the will was unfair.

If there is no will, the court must determine who are the beneficiaries and what part of the estate they each own. Often, if you are not close to your relative who passed away, the local family will “forget” to tell the court that you are an heir. If you are illegitimate, the family may try to prevent you from receiving your inheritance. And, if you just discovered your relative through DNA, that brings up a new set of problems that you will need help with.

If there is an unfair will that has been offered for probate, you will need to contest that will.

Problem – Who are the heirs.

If there is no will or if there is a will that doesn’t dispose of all of the property, then the property goes to the decedent’s heirs. Who those heirs are and getting them their inheritance requires an attorney who handles inheritance disputes.

The local family may forget to mention an heir, they may try to keep a distant heir from receiving their property, and heirs found through DNA cause other problems. In all these cases, the heir needs to have an attorney helping them obtain custody and control of their property.

How long does a beneficiary have to claim their inheritance?

If there is a will, a contest must be filed with two years of the date the will was admitted to probate. Not two years from death but two years from the date the will was admitted to probate.

If there is no will, or the will doesn’t dispose of all of the property, then an heirship proceeding needs to be filed. There is no time limit to file an heirship proceeding unless the decedent died before January 14, 2014. In that case, you need to talk to an attorney who is familiar with heirships to see if you can still file for your heirship.

How to resolve inheritance disputes?

Many inheritance disputes can be settled. We try to settle a case if possible because of the uncertainty of jury trials. But, when a case can’t be settled, we are experienced trial attorneys with many years of experience.

Remember

The property you inherit is your property. You are not trying to get something from someone else. You just want custody and control of your property.

WHAT CONSTITUTES A SIGNATURE ON A WILL

WHAT CONSTITUTES A SIGNATURE ON A WILL

What constitutes a signature

A holographic will is one that is wholly in the handwriting of the testator and signed by him. What constitutes a signature is often contested.

Texas recognizes holographic wills but other states do not. The difference between a holographic will and a typed or printed will is that the typed or printed will has to be attested to by two credible witnesses. Holographic wills do not need to be attested.

Any will whether holographic or regular has to be signed by the testator. When documents are offered for probate as holographic wills, one of the problems that comes about is whether it was signed or not.

In a 2020 case in Texas, a document that was handwritten by the decedent was offered for probate as his holographic will. There was no signature on the document, however, in the body of the document the testator did write “R. Hohmann Estate.” 04-20-00237-CV.

The proponent of the document as a holographic will claimed that that was a sufficient signature. Those contesting the document claimed that it was not and since the testator did not sign or initial the document anywhere, it did not meet the requirements of the holographic will. The court ruled that “R. Hohmann Estate” was not a proper signature.

“Because nothing in the written instrument indicates the phrase “R. Hohmann Estate” expresses Raymond’s approval of that document as a whole…” 

So, what is a valid signature on a holographic will? An X on a document by a person who could not read or write the English language was a sufficient signature. Likewise, a will that started out “I, JP Dawson, being of sound mind… Make this my last will and testament” satisfy the requirements of the signature.

I have written previously about riding on the back of a greeting card that was just initialed that was found to be a valid holographic will. You can read about that case here.

Every case is different and whether a document is a will depends on whether it disposes of property on death and is signed by the person whose will it is claimed to be.

Podcast – Contesting a will with a no contest clause

Podcast – Contesting a will with a no contest clause

Podcast added!

The topic is “Contesting a will with a no contest clause”

Many people are concerned about contesting a will in Texas because they know that the will has a no contest clause. (Almost all wills have a no contest clause in them).
In this podcast, we will discuss what you need to know about contesting a will with that clause in it.
A no contest clause, referred to as an “in terrorum clause,” or “forfeiture clause,” was conceived to strike terror into potential beneficiaries to prevent them from contesting a will. Does it serve that purpose?
Texas courts and the Texas Legislature have a reluctance to enforcing no contest clause because they tend to attempt to close the court’s door whose purpose it is to fully litigate legal issues.
A bad person could obtain a will from someone who is mentally incompetent or obtain a will because of undue influence and the family would be afraid to bring those issues to a court for review.
The first thing to note is if a will cuts a beneficiary out completely, there is no reason for that beneficiary to be concerned about the no contest clause because he is already getting nothing. The no contest clause will have no effect on him. 
For those who do receive a substantial amount under a will that they believe should be contested, the no contest clause is unenforceable if the contest was brought in good faith and with just cause. 
So, the no contest clause should not be the major factor in deciding whether or not to contest a will.
 
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above.

We will be making new podcast from time to time so subscribe to this blog. You can also subscribe to our channel on Apple PodcastSpotify, Google Podcast, Anchor, RSS feed and others that can be found here.

 

Click on the podcast below.

Podcast – Contesting a will with a no contest clause

Podcast – revoking a will in Texas

Podcast added!

The topic is “Revoking a will in Texas”

Whether a will has been revoked or not is an issue that comes up in will contest. A recent Texas case showed some of the problems that can arise when one party claims that the will has not been revoked and the other party claims that it has been revoked.

A written will may not be revoked in Texas, 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.

In either case, a testator must have testamentary capacity to revoke a will just has he must have testamentary capacity to execute a will.

When a testator has a will in his possession at his death and the original will cannot be found, there is a presumption that the will was revoked. The interplay between the presumption of revocation and the requirement of testamentary is the subject of the case we discuss in this podcast.

 

 
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above.

We will be making new podcast from time to time so subscribe to this blog. You can also subscribe to our channel on Apple PodcastSpotify, Google Podcast, Anchor, RSS feed and others that can be found here.

 

Click on the podcast below.

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