In Texas, there are two sets of requirements for wills. One applies to the rare situation where wills are wholly in the handwriting of the testator and the other one applies to the more common situation where wills are not wholly in the handwriting of the testator.
A will that is wholly in the handwriting of the testator has few requirements except that it must be made with testamentary intent, be in the handwriting of the testator and be signed by him.
A will that is not wholly in the handwriting of the testator must also be made with testamentary intent. Additionally, it must be be signed by the testator in person or by another person for him by his direction and in his presence and attested by two or more credible witnesses. The witnesses must sign the will in their own handwriting and in the presence of the testator. The witnesses must be 14 years of age or older.
What issues arise in contested probate matters relating to the formalities required of a will? Some common issues are:
Someone will attempt to probate a letter or other document that was written by the testator. They claim that it is his last will. Such a document can be a last will if it is made with testamentary intent, is in the testator’s handwriting and signed by him. The biggest problem usually faced is whether or not the document was made with testamentary intent.
The more common situation is where someone attempts to probate a document that purports to be a will. It is not wholly in the handwriting of the testator but calls itself a will, is signed by the testator and maybe even notarized. Such a document is not a will simply because it calls itself a will and is notarized. The statute requires that it be witnessed by two credible witnesses over the age of 14 who sign the will in the presence of the testator. Therefore, a will that is notarized but not witnessed does not meet the requirements of being a will.
If you have a question about whether a document qualifies as a will, we’ll be happy to talk to you about it. Email us or give us a call.
