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.”