Will Contests in Texas – Part 2

Today we look at the statutory requirements for a valid Texas Will.

Texas Probate Code Section 59 is where we find the rules for what constitutes a valid Will in Texas.  It states that a will shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting and in the presence of the testator.

Now those are the physical requirements.  However, to be a valid Will, the document must be written with what is called “testamentary intent.”  It must possess in some degree the essential characteristics of a will.  The most common proof of such intent is a statement such as “This is my last Will and Testament,” or “it is my will and desire.”  However, the fact that the person may not realize they are writing a Will, does not prevent it from being probated as such, if it fulfills the statutory requirements.  The Supreme Court in Hinson v. Hinson stated that “The [testamentary intent] does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect at his death.  It is essential however that the maker shall have intended to express his testamentary wishes in the particular instrument offered for probate.”

What about Oral Wills?  Well, until 2007, there remained in Texas such a thing as an “oral will” or otherwise known as a “nuncupative” will.  However such a Will was only valid for personal property and required three witnesses and only counted if the person made it on his deathbed.  Now, even such limited circumstances do not count and all Wills must be in writing to be valid.

Regarding the technical requirements, the “signature” of the testator can be any mark and may even appear in the body of the document.  If the person signed with an “X” then that is a valid signature.  If the person wrote “Your son, Jimmy,” then that is a valid signature.  In fact, even if someone else signs the document, say because the Testator had two broken hands, this will be valid provided that it is done in the Testator’s presence and at his direction.

Furthermore, the witnesses to such Will must be “credible.” Luckily for most of us, this is a very low hurdle to overcome. To qualify as credible, the witness must not be receiving any bequest under the will, and must be over the age of fourteen.  In fact, the witnesses do not even need to know they are signing a Will.  Nor do they have to actually see the Testator sign the Will.  Nor do they have to sign in each others’ presence.  So long as they sign in the Testator’s presence and at his direction, they will qualify as a valid witness.

If one wishes to dispense with even the meager requirement of two witnesses, they need only to write the entire will in their own handwriting.  A “holographic” Will, as such is known, is a Will wholly in the handwriting of the Testator and requires nothing more than the Testator’s own signature.  There’s even a case in Texas of a man scratching out a valid Will on the fender of a tractor that he had unfortunately turned over and fatally pinned himself under.

So there you have it, the execution of a Will.  No notary requirement, no formal ceremony, no fancy recitals or oaths of fealty, just a writing with testamentary intent and signatures of witnesses if it’s typewritten.  Next time, we will look at “Testamentary Capacity,” and what it means to be of “sound mind.”

The Houston Chronicle Is At It Again

On Friday, November 4, 2011, the Houston Chronicle ran a front-page story entitled, “Elderly Texans at Risk, and It’s Legal,” which is the latest in a series of articles over the last few years regarding the Chronicle‘s perceived deficiencies in the way that guardianship cases are handled by the Probate Courts in Texas.  You may recall that we reported on a similar story from October 22, 2010, and prior stories were published in the Chronicle in June 2007.

The new article depicts the story of Helen Hale, an 86-year old widow who was “plucked” from her house and placed into a retirement home, but the article glosses over the fact that Hale’s children were neglecting to provide appropriate care for her.  The article cites that over 30,000 elderly people in Texas have “lost the right to decide where they live, to choose a caretaker or to spend their life savings…” due to becoming incapacitated in their later years.  The article also cites that the number of guardianship cases in the larger counties like Harris, Travis, and Bexar has increased to the point that each probate judge handles a caseload of between 1,500 and 3,000 guardianships per court, but it fails to cite that these counties have special courts dedicated to handling guardianship cases.  Most interestingly, the article casts a negative light on these courts because “most [probate] judges have only a single investigator to check out potential problems” in guardianship cases.

Although the Chronicle appears to tell a compelling story of neglect in the Probate Courts, the story clearly fails to convey the facts about guardianships accurately.  The article faults the probate courts for having only one investigator per court, but it fails to mention that only the 10 largest counties in the State with special courts dedicated to handling guardianship cases have court investigators to investigate problems in guardianship cases.  In the 224 other counties in the state, no court investigator exists in the entire county, which means that the vast number of counties in the state have nobody to investigate guardianship issues.

Likewise, in the 10 largest counties that have special judges dedicated to hearing nothing but probate and guardianship cases, the Courts have investigators and auditors to closely monitor what happens in guardianship cases.  The 224 other counties in the state have judges who do not “specialize” in guardianship cases, and in many cases, those judges are not even lawyers.  Instead, the courts in the 224 smaller counties hear a wide variety of cases – civil, criminal, family, guardianship, etc. – and do not offer incapacitated individuals the same level of attention that they receive in the larger counties.

The Chronicle is correct that the number of guardianship cases has exploded in the last 20 years because of the aging population in Texas.  The Chronicle also correctly cites one of the Probate Judges in Houston when she says that guardianship disputes are “the most expensive endeavors that I see in probate courts.”  Guardianship disputes are incredibly complex, and they are often made more complex by attorneys who do not routinely practice in this area and who do not fully understand the complexities of these cases before they get involved.

In reality, no system is perfect, and every system is going to have flaws.  However, the Probate Courts in Harris County take the greatest care of any Courts in the state in attempting to protect the interests of the elderly in Houston.  If you find that you need to pursue a guardianship over a family member, please contact Ford + Mathiason.  Our attorneys have very substantial experience in contested guardianship cases, and we would be glad to assist you.