Signing a Will in All the Wrong Places

by Robert Ray | Last updated Apr 19, 2022 | Contesting Wills, Contesting wills

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.

Can a testator make hand written changes to a will

by Robert Ray | Last updated Feb 4, 2021 | How to probate a case, Probate, Wills

Can A Testator Make Hand Written Changes To A Will?

As a general rule, if a will is not “wholly” in the handwriting of the testator, it must be attested to by two credible witnesses.

If a testator attempts to make handwritten changes to a written will, those changes must be witnessed by two credible witnesses unless the handwritten parts are separate from the written will, in which case it would be a codicil to the original written will not handwritten changes on the original will.

If a testator wants to make handwritten changes to the written will the changes must be attested to by two credible witnesses. So you might have a situation where there is a will that is attested to by two credible witnesses and then handwritten changes on the written will that are attested to by the same witnesses on the original will or by new witnesses just to the handwriting changes. In the last situation, you would have four witnesses in total! 05-12-01420-CV.

When is a handwritten document a holographic will?

Contesting a Will Because of Improper Execution of the will

What Are Holographic Wills In Texas

Contesting a Will Because of Improper Execution of the will

Podcast – revoking a will in Texas

by Robert Ray | Last updated Dec 23, 2020 | Contesting wills, Probate

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 Podcast, Spotify, Google Podcast, Anchor, RSS feed and others that can be found here.

Click on the podcast below.

Are Arbitration Provisions of a Will Enforceable?

by Robert Ray | Mar 10, 2019 | Probate

I have written previously that arbitration clauses in trust are enforceable against the beneficiaries. Normally, arbitration clauses are not enforceable against someone unless they agreed to be bound by arbitration. In the trust context, the Supreme Court has held that if a trust contains an arbitration clause and you receive benefits from the trust, you are agreeing to the arbitration clause. This is called direct-benefits estoppel. I said in that article that the same rule would probably apply to an arbitration clause in a will. Well, there is a case now involving an arbitration clause in a will.

In the will case, the Testator’s will contained a provision requiring arbitration of all disputes. 14-18-00003-CV. The Successor Administrator sued the Former Executor for several alleged breaches of fiduciary duty. Former Executor moved to compel arbitration. The trial court denied the motion and Former Executor appealed.

The appeals court also denied arbitration. They said that direct-benefits estoppel did not apply because the Former Executor did not receive benefits. The Former Executor claimed that the fees that the he received were benefits under the will so the arbitration clause required arbitration. The court explained that Successor Administrator’s claims are not based on allegations that Former Executor violated the terms of the will. Instead, the breach of fiduciary duty claims against Former Executor were derived from statutes and common law, irrespective of the will itself. In addition, Successor Administrator’s entitlement to fees is based on Texas Estates Code § 352.051, not the will.

So, the implication is that arbitration clauses in wills are enforceable under the right circumstances.

Note: A 2019 case denied an interlocutory appeal of an order to arbitrate. A party sued a trust company for inappropriately distributing funds. The trust company demanded arbitration which the trial court ordered. The party that did no want arbitration attempted an interlocutory appeal. The appeals court denied the appeal saying that only orders denying arbitration are subject to interlocutory appeals, not orders granting arbitration. 11-19-00017-CV.

London Courts Face Explosion Of Will Contest Cases

by Robert Ray | Last updated Dec 17, 2020 | Children, Contesting wills, Procedure, Property

Explosion of Will Contest Cases

The evening standard reports that London courts are facing an explosion of will contest cases.

“There has been a huge explosion of inheritance disputes. More people will be aware that they can do something about it when they are cut out of their parents’ will.” “We are seeing an increase in Inheritance Act claims brought by adult children …. claims of this nature will only become more common,”

Ageing Population Cause of Explosion of Will Contest Cases

An ageing population and rising levels of dementia have fueled a sharp rise in will disputes.

“People are living longer and we have a generation of children who are reliant on their parents.”

Some children (and, based on my experience, “friends” and “caretakers”) are taking advantage of the elderly.

The article “warned that a rise in court fees was leading more people to try to represent themselves.” “(T)he end result could be catastrophic for some.” While the court fees are not as high in Texas as they are in the UK, a person trying to represent themselves in a will contest case in Texas may be facing a catastrophe for them and their case.

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