What happens if instead of signing his name, the testator just initials the document?
Texas courts have been lenient regarding the location and form of a “signature.” They have approved an X as a sufficient signature on an attested will. The most important factor is that the testator intended his mark to constitute his signature. A signature by initials executes a will if the instrument is testamentary in character and if the testator meant his initials to be his signature. 862 s.w.2d 8.
What are the requirements of a will in Texas
Texas requires that a will be in writing and signed by the testator or signed by another person on behalf of the testator and in the testator’s presence and under the testator’s direction.
Will contest in Texas
If someone is contesting a will in Texas and contends that the initials or the mark are not a sufficient signature, the issue at trial will be the testator’s intention when he initialed or put his mark on the document rather than whether or not the initials or the mark constitute a valid signature.
In an old Texas case, the attorney testified that the deceased insisted on an affidavit. He refused to make a will because his wife was refusing to make one. The attorney recommended that he execute a will instead but he refused. The court noted that even though the gentleman told his attorney that he did not want to make a will but an affidavit, the affidavit was in fact a will.
Can an affidavit be a will, Yes it can be
The case upholds a jury finding that the affidavit is a will. The court noted that the affidavit is unambiguous and is clearly testamentary in its character. It makes certain special bequests and then proceeds to dispose of the maker’s entire estate. It (more…)
The Texas Estates Code requires every last will, if not wholly in the testator’s handwriting, to be attested by two or more “credible witnesses.” The proponent of the will has the burden of proof to show that the witnesses who attested the will are “credible witnesses.”
What are credible witnesses?
The Texas Supreme Court has ruled that “credible witness” is synonymous with “competent witness.” A competent witness to a will is one who receives no pecuniarybenefit under its terms. So a husband can be a witness to a will where his wife is a beneficiary if he is not a beneficiary. Likewise, a wife can be a witness to a will where her husband is a beneficiary if she is not a beneficiary. Conversely, a person who is a beneficiary under a will is not “credible” and can’t be a witness. There is an old case at 838 sw2 547 that says that in passing. I have written another article about the problems encountered when a beneficiary witnesses a will.
However, a beneficiary can be a witness if his testimony can be corroborated by someone else or if the will can be proved in some other manner. TEC §§254.002.
How do you prove that the witnesses are credible?
According to the court, where the will is admitted into evidence, and it provides no pecuniary benefit to the witnesses, the will itself constitutes some evidence that the witnesses are credible to attest to the will at the time the will was executed.
The Kansas City Star newspaper reported an interesting story. A sixty-seven year old millionaire, Bill Van Note, was in the hospital on a ventilator after a late-night attack at his house. That attack remains unsolved. The man was rushed to the hospital. The daughter had a power of attorney for health care. She told the hospital to pull the plug. “So after discussion — it’s unclear how long — doctors shut off the ventilator and pulled the tube from their patient’s throat. Over several hours, Bill Van Note, who had been a prominent Liberty businessman, died, slowly.” Once it was discovered that the power of attorney for health care had been forged, the district attorney charged the daughter with murder. He also charged the two witnesses to the power of attorney with murder.
“Camden County Prosecutor Brian Keedy says Liz Van Note’s preparation of the document shows the premeditation required for first-degree murder. What killed her father, Keedy alleges, was being removed from life support.” The witnesses to the forged power of attorney were involved in the same scheme so they were charged also.
They same situation would apply to the execution of wills. If someone knows that a person is not mentally capable of executing a will but helps the person obtaining the will by being a witness to the will, they also might be charged with a crime. So, if someone you know asks you to witness a will, make sure the affair is on the up and up to avoid problems.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
A law professor who teaches probate and estate planning has listed six common reasons why people contest wills. Prof. Gerry Beyer’s paper is here. The paper also recommends a proper procedure for the execution of wills. It is worth reading. The six common reasons for contesting a will listed by Prof. Beyer are:
Disinheritance of Close Family Members in Favor of a Distant Relative, a Friend, or a Charity.
Unequal Treatment of Children.
Sudden or Significant Change in Disposition Plan.
Imposition of Excessive Restrictions on Bequests.
Elderly or Disabled Testator.
Unusual Behavior of Testator.
These are not the only reasons that people contest wills but they are common reasons. The reasons listed generally relate to the mental decline of the testator in their old age which is evidenced by their confusion, forgetfulness or susceptibility to the influence of others.
By Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.