Proper Execution of Will
In Texas, wills must be executed with proper formalities. If it is not executed with those formalities, the will not be admitted to probate and the deceased’s property will go to his heirs through the law of descent and distribution. In other words, the deceased will die intestate (without a will.)
Proper execution generally requires that:
- The will be in writing;
- Signed by the testator;
- It must be signed with testamentary intent;
- The testator must know and understand the contents of the document; and
- If not wholly in the handwriting of the testator, it must be witnessed by two credible witnesses who sign the will in the presence of the testator.
In a 2016 case, the proponent of a will tried to probate it where her brother was the only witness to testify. The other witness was too ill to come to court and testify. Since she only had one witness instead of the required two, she said that the notary’s signature should be used as the second witness. The notary was not called to testify. The court distinguished those case where a notary was considered as a witness even though she didn’t sign as a witness. The court noted in all those case, the notary was called as a witness and testified. The court declined to admit the will to probate because of improper execution, e.g. it only had one witness.
In a 2009 case, a husband and wife signed a joint will, there was only one witness. The appeals court allowed the husband’s will to be probated by ruling that the wife’s signature on the will plus the signature of the one witness satisfied the requirement that there be two witnesses. 346 S.W.3d 1.
Signature placements and marks
Texas is very lenient about what can constitute a signature and where it appears in a will. Initials and the mark “X” have been upheld as valid signatures on a will. I have written about that issue on my blog and you can read it here. The placement of the signature on the will is also treated leniently by Texas courts. I have also written about that issue on my blog and you can find it here. Both of these issues e.g. placements and marks for signatures lead to will contest in Texas. Because it is not an ordinary will and an ordinary signature there are many issues that the court must decide before the document is admitted to probate.
Corrections to a will in Texas
Once a Texas will is properly executed, pages cannot be changed or replaced unless the will is re-executed with the same formalities required of a new will.
In a case decided in 2013, a Texas Court of Appeals had to decide an issue relating to the time frame in which corrections of some of the pages in a will occurred. There was no question that the will contain mistakes and that they were corrected. The question was whether the corrections were made after the will was executed or before. The first thing that the court ruled on was who had the burden of proof. They ruled that the person who was claiming the will was corrected after it was executed had the burden of proof. While there was some conflicting evidence, the trial judge ruled that the corrections were made before the will was executed. The appeals court ruled that the person claiming that the will was executed before the corrections were made did not meet their burden of proof and therefore ruled against them. No one stated directly that the will was corrected after it was executed. There was just some circumstantial evidence that the attorney took the will back to his office at one point, made the corrections, and returned but no one said definitely this took place after the will was executed. The will was admitted to probate. No. 05-11-00246-CV.
In a 2018 case, the appeals court described it as follows: “This is the case of the blinking testator. In October 2015, Michael Lynn Luce was in a serious accident that left him a quadriplegic. A week after he was admitted to the hospital, Michael was intubated, which rendered him unable to speak. Paralyzed from the chest down and unable to speak, Michael was able to communicate by blinking his eyes to indicate “yes” and “no.” Using this blinking system, Michael’s attorney was able to draft a will based on Michael’s blinked responses to a series of leading questions, and through this system, Michael directed a notary to sign the will for him.” The court thought the blinking system was sufficient to establish Testator’s directions, therefore, the will was validly executed. 02-17-00097-CV.
For a discussion on what order the parties must sign the will, click here.