An opinion from the Corpus Christi Court of Appeals last year is a great review of the legal requirements to execute a valid will in Texas.

Photo by Todd Thompson on Unsplash

Background

Pedro Vera passed away in August 2018.  In October 2018, his former neighbor, Mr. Sanchez, filed an application for probate of Mr. Vera’s holographic (handwritten) will.  Sanchez produced a holographic will purportedly drafted and signed by Mr. Vera on November 25, 2010, during a Thanksgiving dinner.

Mr. Vera’s brother, Hector, contested the probate application, claiming that the signature on the holographic will was not Mr. Vera’s.  Instead, Hector argued, the court should admit a formal, typewritten will that Mr. Vera executed in 2009.

At trial, Sanchez’ stepsister testified she saw Mr. Vera write and sign the holographic will and that she signed the will as a witness.  Her aunt also testified that she watched Mr. Vera sign the will.  The stepsister testified that she saw two other people witness Mr. Vera execute the will, but that both of them were now deceased. Both the stepsister and her aunt testified that Mr. Vera expressed his intent being to leave his house to Sanchez. The stepsister admitted that one of the deceased witnesses wrote in the address of Mr. Vera’s home after he signed the will.

Hector testified that the signature on the will did not belong to Mr. Vera.  He said he knew his brother’s signature and this was not it.  Hector was not at the Thanksgiving dinner where the will was allegedly executed.

The trial court denied admission of the holographic will, finding that the witnesses were “neighbors of the decedent and beneficiaries of the holographic will” and their testimony was not credible.  Further, the court held, the will did not comply with the legal requirements of Texas Estates Code Section 215.052 (stating that holographic wills written entirely in a person’s own handwriting do not have to be attested to).

Sanchez appealed.

Opinion

The Corpus Christi Court of Appeals affirmed.  [Read opinion here.]

The court first set forth the requirements for executing a will in Texas.  To be valid, a will must be: (1) in writing; (2) signed by the testator or a person signing on the testator’s behalf in his or her presence under his or her direction; and (3) attested by two or more credible witnesses who are at least fourteen years of age and who sign the will in their own handwriting in the testator’s presence.  There is an exception, however, for a will written wholly in the testator’s handwriting.  This is known as a holographic will, and Texas law does not require witnesses for a holographic will to be valid.  In order to prove the execution of a holographic will, two witnesses must provide sworn testimony that the will is executed in the testator’s handwriting (unless the will is self-proving, as discussed below).  If a holographic will contains portions in another person’s handwriting, this does not invalidate the will if the remaining portions that are in the testator’s handwriting  would stand alone as a will.  In other words, a holographic will could be valid even with the writing of another person included if a court could disregard the other’s writing and a valid will still exists.

First, the appellate court found there to be sufficient evidence to support the trial court’s apparent finding that the signature on the will did not belong to Mr. Vera.  Hector testified that it was not his brother’s signature, while Sanchez’ stepsister testified it was.  It is up to the trial court to weigh witness credibility, and the court could have found Hector’s testimony to be more believable than the stepsister’s.

Next, the court addressed the issue of the witnesses being interested parties.  Sanchez argues that the court was wrong as it stated the two witnesses were beneficiaries under the will and, therefore, not credible.  The appellate court, however, read the court’s language a different way. Where the trial court stated that the two witnesses were “neighbors of the decedent and beneficiates of the holographic will, the appellate court believes this meant not that the two women were beneficiaries themselves–but that they were neighbors of both Mr. Vera and Mr. Sanchez (the beneficiary).

Thus, the court affirmed the decision of the trial court refusing to admit the holographic will into evidence.

Key Takeaways

This case offers an important overview of the legal requirements of executing a will in Texas.  In order for a person’s wishes to be valid, a properly executed will is critical.

For a typewritten will, remember the will must be signed by the testator (or by someone in the testator’s presence at the testator’s direction) and signed by two witnesses who see the testator sign the will.  For a handwritten will, no witnesses to the execution are required if the will is completely in the testator’s own handwriting, but two witnesses who can testify as to the handwriting will be needed in order to admit the will to probate.

A few things to think about here.

First, for wills where there will be witnesses to the execution, people should think carefully about who they select as witnesses.  Choosing someone who is not an interested party can help avoid issues in the future.  Do not have a person inheriting under the will be a witness.  It is likely best if the witnesses are not related to the person executing the will at all.

Second, although handwritten wills are valid even without witnesses, remember that two people who know a person’s handwriting will be needed to testify.  This may seem like a simple requirement now, but years from now when the person dies, it may be more difficult to find sufficient witnesses.  One way to avoid the need for these handwriting witnesses is for the testator to make the handwritten will “self-proving.”  Texas Estates Code Section 215.107 states that this may be done anytime during the testator’s lifetime by attaching an affidavit of the testator that the instrument is a will, the testator was 18 years of age when it was executed (or, if not 18, the testator was married or in the US armed forces), the testator was of sound mind, and the testator had not revoked the will.  The affidavit must be executed before someone authorized to administer oaths (like a notary).  There is a form self-proving affidavit found in Texas Estates Code Section 251.104(e).

I always recommend that everyone have a will, regardless of age, marital status, or value of assets.  As my friend, James Decker says, “Die with a will, it just makes things easier on everyone.”  Further, I really recommend that people consider using an attorney to draft a will.  A good estate planning attorney can help avoid pitfalls and potential issues when executing a will or other estate planning documents.  I will almost guarantee that the amount of money a person spends getting a will drafted will be a fraction of the amount of money it takes to litigate any type of will contest.

Lastly, the new year is a great time to do a review of one’s estate plan. Take a few moments to just review documents like wills, trusts, and powers of attorney.  Double check beneficiary designations on things like retirement accounts, investment accounts, and life insurance policies.  Ensure your bank accounts are held properly and that you understand what will happen to those accounts when a person passes away.  A quick review on a yearly basis helps to keep an estate plan current and ensure a person’s wishes are carried out.