Part 1 – What are the statutory requirements for a Will in Texas.
The first place to start in a Will contest, is, not surprisingly, the Will itself. In Texas, a Will must be in writing in all but the most limited circumstances. If you knew the Decedent to have a Will, examine the one offered for probate. Is it the same document you knew to be the decedent’s Will? If not, is it consistent with what the Decedent relayed to you concerning the disposition of his Estate? Also, determine if the Will is from a familiar source. Most probate attorneys have some form of identification on their Wills. If you find it, ensure that it is a lawyer you knew the Decedent had used in the past or was at least familiar with. Feel free to give the attorney a call and inquire as to her recollection of the execution.
Second, the Will must be signed by the Decedent. If you were familiar with the signature of the Decedent, examine the Will and ensure that the signature matches what you knew to be the Decedent’s signature. However, it is important to note that almost any marking will suffice as a signature, just so long as it was the Decedent’s mark or a mark made by someone, for him, at his direction, and in his presence. If you feel the signature does not match up, consult a handwriting expert and obtain a professional opinion.
Third, the Will must be signed by the maker with the intent to express his wishes for a testamentary disposition of his property. In other words, the intention to make the document a Will. This is called “Testamentary Intent.” A letter may suffice as a Will, but it must clearly express the person’s desire to pass on property after his death. Anything short of that and the document will not be held to have been drafted with the requisite “intent.”
Finally, the drafter must have known and understood the contents of the document he was signing. While this element bleeds over slightly into testamentary capacity issues, the main thing to focus on here is did the drafter know what was in the Will, and did he understand what the document stated. If this was just some document that was drafted elsewhere and then shoved into the person’s face by a manipulative beneficiary, and the Decedent never knew or understood the contents, then it will not qualify as a valid Will.
These are the first questions to be asking yourself when you are concerned with the validity of a Will and contemplating a Will Contest in Texas. Tomorrow we will delve deeper into the requirements for a valid execution of a Texas Will.