Contesting a Will Because of Improper Execution in Texas

What Texas requires

Lawyers call signing a will "executing" it. A will that wasn't executed the way the law requires can't be admitted to probate, however clearly it states what the person wanted.

Under the Texas Estates Code (§ 251.051), a will must be:

In writing.
Signed by the person making the will, or by someone else who signs for them, in their presence and at their direction.
Witnessed by two or more credible witnesses, each at least 14 years old, who sign their own names to the will in the person's presence.

The person must also have meant the document to be their will, which lawyers call testamentary intent. A letter or a list of wishes isn't a will just because it mentions who should get what.

The handwritten-will exception

A will written entirely in the person's own handwriting doesn't need witnesses. These are called holographic wills. The handwriting has to be proved, usually by two people who knew it, and the will still has to be signed and meant as a will. Holographic wills in Texas · When is a handwritten document a will?

Witnesses who inherit

A witness who also receives something under the will is a problem, but usually not for the whole will. If the will can't be proved without that witness's testimony, the gift to the witness is generally void, unless at least one disinterested person backs up their testimony. Even then the witness can keep up to what they would have inherited without a will. The rest of the will can stand. Who is a credible witness? · Can a beneficiary witness a will?

Where courts are lenient

Texas courts are strict about the requirements and forgiving about the details.

What counts as a signature. Initials and a mark such as an "X" have been upheld, if the person meant it as their signature. Can a will be signed by initials? · What counts as a signature
Where the signature appears. A signature doesn't have to be at the very end to count. Where do you sign a will?
Someone else holding the pen. Another person can sign for the testator, in their presence and at their direction. The "blinking testator" case below shows how far that can go.

So an unusual signing is not, by itself, a reason to think the will is invalid. What matters is whether each requirement was actually met.

The self-proving affidavit

Most wills prepared by a lawyer end with a self-proving affidavit: a notarized statement, signed by the person and the witnesses, saying the will was signed properly. With it, the will can be admitted to probate without any witness testifying.

Two things to understand about it:

It doesn't make the will contest-proof. Texas law says a self-proved will can be contested the same way as any other will.
It is still strong evidence. A properly completed affidavit makes it harder to argue the signing went wrong. A challenge usually has to show what actually happened that day, for example that a witness wasn't in the room, or signed later.

Without a self-proving affidavit, the person offering the will generally has to prove it was signed properly, usually through the testimony of at least one of the witnesses. The limits of a self-proved will

What it looks like in real life

Only one witness signed, or a witness's signature line is blank.
A witness says they weren't there when the person signed, or signed later, at a different time or place.
The notary is the only other signature. A notary is not automatically a witness.
Pages look different from one another: different paper, typeface, or staple holes, or a page that seems to have been swapped in.
Handwritten changes were added to a typed will after it was signed.
The witnesses inherit under the will.
The will was signed at a hospital bedside or by someone else, with little record of how the person directed it.
A "will" that is really a letter or a note, and nobody can say whether the person meant it as their will.

Any one of these can have an innocent explanation. Signings are often informal, and courts forgive a lot. It's the pattern, and what the witnesses actually remember, that matters.

Cases that show how this works

The notary who wasn't counted as a witness

In a 2016 case, the person offering a will had only one witness to testify; the other was too ill to come to court. She argued that the notary's signature should count as the second witness. The notary was never called to testify. The court noted that in the cases where a notary was counted as a witness, the notary had testified, and it refused to admit the will. It had only one witness.

The joint will with one witness

In a 2009 case, a husband and wife signed a joint will with only one witness. The appeals court allowed the husband's will to be probated, treating the wife's signature plus the one witness as satisfying the two-witness requirement. 346 S.W.3d 1.

The corrected pages

In a 2013 case, there was no question that the will contained mistakes that were corrected. The question was whether the corrections were made before or after the will was signed. Pages can't be changed after signing unless the will is signed again with the same formalities. The court held that the person claiming the changes came after the signing had the burden to prove it. There was some circumstantial evidence that the lawyer took the will back to his office and made corrections, but no one said it happened after the signing. The will was admitted. No. 05-11-00246-CV.

The blinking testator

In a 2018 case, a man left quadriplegic and unable to speak after an accident communicated by blinking for "yes" and "no." His attorney drafted a will from his blinked answers, and he directed a notary to sign it for him. The court held the blinking system was enough to show his directions, and the will was validly executed. No. 02-17-00097-CV.

What happens if the will fails

If a will can't be admitted because it wasn't properly executed, the property passes under the most recent earlier valid will, if there is one. If there isn't, it passes to the person's heirs under Texas law, as if there were no will. That is often the real question in these cases: what the alternative is. Who inherits when there's no will

Deadlines

The best time to raise improper execution is before the will is admitted, by filing an objection when someone applies to probate it. After it has been admitted, a will contest generally must be filed within two years of the date it was admitted to probate. Time limits for contesting a will

What evidence matters

The original will. Not a copy. The paper, the staples, the ink, and whether the pages match can matter. The original is usually filed with the county clerk once probate starts.

The witnesses. Who they are, whether they were in the room, whether they saw the person sign, and whether they signed in the person's presence. Their own memory of the day is usually the heart of the case.

The notary and the notary's records. Many notaries keep a log of what they notarized and for whom.

The drafting lawyer's file. Drafts, notes of the signing meeting, and any changes made to the will, and when.

Earlier wills. They show what the person's plan was before, and they decide where the property goes if this will fails.

For a handwritten will: samples of the person's genuine handwriting from around the same time, and people who knew it well.

What to do next

Get a copy of the will as filed. Look at the signature page and the witness lines, and check whether there is a self-proving affidavit.
Ask to see the original. Problems with pages, staples, or later changes often only show up on the original.
Find out who the witnesses are, and whether they're living and can be found.
Find out whether there is an earlier will. It decides what happens if this one fails.
Write down what you know about the signing. Where it happened, who was there, and anything the person or the witnesses said about it.
Check the deadline. Note whether the will has been admitted to probate, and when.

Improper execution

The short version