I. EXECUTION OF WILLS & II. HOLOGRAPHIC WILLS Flashcards
I. EXECUTION OF WILLS
A. REQUIREMENTS FOR DULY EXECUTED WILL
3
codicil
TX doesn’t require?
4
witness signed before T? T signed 3 days after witness signed
T must be 18 years old (or married, or in the armed forces).
#1. Signed by testator
or by someone at T’s direction and in her presence (proxy signature)
#2. Two attesting witnesses [Feb. 1998] over age 14.
**#3. Each witness must sign IN TESTATOR’S PRESENCE [July 1997]
Codicil (later amendment or supplement to a will) must be executed with the same formalities.
Texas law does not require:
- that witnesses know they are witnessing a will, as distinguished from some other legal document (no “will publication” requirement).
- that T sign in the witnesses’ presence. (Testator can have signed the will earlier.)
- that witnesses sign in each other’s presence.
- [Feb. 2005] that the testator sign “at the foot or end” of the will. [Feb. 2010: witnesses signed on back side of second page of will—will valid]
- Exact order of signing is not critical when execution ceremony is contemporaneous (But where T forgot to sign when witnesses signed, and added his signature a week later in same witnesses’ presence, will denied probate)
- any mark intented as T’s mark is fine
B. WITNESSES MUST SIGN IN TESTATOR’S “CONSCIOUS” PRESENCE
Testator was in hospital bed behind heavy screen; witnesses were in doorway, 15 feet away, their view hidden by the screen. W and T can’t see each other
where will was taken to adjoining room where W signed it
after T signed he lapsed into a coma and then witnesses signed
-It is not necessary that the testator should actually be able to see the witnesses when they sign. They are in his presence whenever they are so near to him that he is conscious of where they are and what they are doing
Held: They signed in T’s presence under “conscious presence” test.
- not “conscious”: But [July 1985] where will was taken to adjoining room where W signed it, W did not sign in T’s presence
- not “conscious”: And [Feb. 1987] if after T signed he lapsed into a coma and then witnesses signed, they did not sign in T’s conscious presence.
C. PROOF OF WILLS IN PROBATE
how can we prove the will if one of the attesting witnesses, predeceased T? if all witnesses died?
If only one such person can testify to the handwriting of the testator or handwriting of either attesting witness. [July 2009]?
substitute for live testimony of the attesting witnesses in open court?
(1) Testimony of one attesting witness in open court. (If she resides outside the county, testimony may be secured by deposition or interrogatory.)
(2) If all witnesses are dead or cannot be located, testimony of two persons as to the handwriting of the testator or handwriting of either attesting witness.
[July 2009] If only one such person can be located, the testimony of that one person is sufficient. (In this situation, there is a presumption that all testamentary formalities were complied with, even if the will did not contain an attestation clause.)
burden to invalidate on challenger
-Self-proving affidavit: it is a substitute for live testimony of the attesting witnesses in open court.
a, Two-step will execution ceremony: T and witnesses sign the will, then (after being sworn in by a notary) T and witnesses sign the affidavit.
b, One-step will execution ceremony: The will’s attestation clause (which appears after testator’s signature block and above witnesses’ signature lines, recites all of the elements of due execution—“testator declared to us that this was her last will and asked that we witness it” etc.—attestation clause is prepared as a sworn statement; testator and witnesses sign only once.
D. ATTESTING WITNESS IS BENEFICIARY – INTERESTED WITNESS STATUTE
Angela, a widow, left a will that bequeathed $50,000 to each of her sons, Ben and David, and devised the rest and residue of her $500,000 estate to her church. The will (which was not self-proved) was witnessed by neighbor Ned and her son Ben. What is the effect of Ben’s being a witness?
Is the will admissible to probate, when one of the attesting witnesses is also a beneficiary?
yes; Interested witness situation never affects validity of the will. Only result: bequest to witness is void . . . UNLESS:
[1] [July 2000, Feb. 2005] Will can be proved without the interested witness’s testimony,
[2] OR the interested witness’s testimony is corroborated by the testimony of a disinterested and credible person, (This can be anyone present when the will was executed)
[3] OR [July 1989] the interested witness would be an heir if this will were not probated, in which case the interested witness takes whichever is least: the lesser of (i) the legacy under the will or (ii) intestate share.
interstate share here without Angela’s will would be 250, thus the legacy under the will is not void, Ben takes only 50k as legacy
II. HOLOGRAPHIC WILLS
“I, Mary Jones, leave my property to HOBIE GATES” (HB in block print)
1, Was it intended as a will?
Is extrinsic evidence admissible on the issue of testamentary intent?
2, was it signed
3, does it matter if it wasn’t dated
4, Is it wholly in T’s handwriting? (How do you prove up a holographic will?)
5, What if “HOBIE GATES” were typewritten?
stamp?
- Texas recognizes holographic (handwritten, unwitnessed) wills, so long as they are “wholly in the handwriting of the testator” and signed by the testator. You can have a holographic codicil to a typewritten, witnessed will.
- Holographic will can be valid in Texas even though not valid in state in which he lived when it was written (law of place of death controls)
-1, the formal way to begin the writing and sounds like a will so she intented to be a will; (the name is the signature)
if ambivalent and might be intented to be a will; “mother takes all, signature” when he was dying
-2, “mary jones” is the signature
3, no
4, 2 persons who can testify thats her handwriting; but the block print “hobie gates” need find someone who can testify thats her block printing
5, denied probabte because “NOT WHOLLY IN HIS HANDwriting”
stamp no
II. HOLOGRAPHIC WILLS
6, T writes his will on hotel stationery that says, at top, “WHEN IN SAN ANTONIO, VISIT THE ST. ANTHONY.” T crosses out everything but “SAN ANTONIO,” showing an intent to incorporate into the will the place where it was written.
Should the writing be admitted to probate?
6, yes; surplus edge rule: extraneous printed words, not necessary to complete the will or its meaning, can be disregarded.
II. HOLOGRAPHIC WILLS
7, Handwritten, signed letter to attorney: “I have decided to make some changes in my will.Please make these changes; I will sign the necessary documents when I come into town.” After T’s death this letter is offered as a codicil to the executed will.
Should the letter be admitted to probate? (Was this document written with testamentary intent? Was this document intended to be offered for probate?)
7, no; its only preperation of another document
never intent to go before a judge
- [Feb. 1988] Shortly before his death, John sends the following letter to his friend Mary: “I spent the last two days rounding up my finances to make sure where I stood, and I want you to know that I will send you $500 each month for the next five years, starting now ($500 enclosed). I hereby bind my estate to make the payments if I die before the five years are up.”
/s/ John Whitman
John died three weeks later. Seeking to collect remaining payments, Mary offers the letter as a holographic codicil to John’s will; should it be admitted?
If the writing is not a will, is it enforceable as a promissory note?
no; if in order to be either will or codicil, must be intent to take effect upon the maker’s death
no; unless there is consideration; this case cant testify
- Tom is critically injured in an auto accident. Taken to a local hospital, Tom (who is so badly injured he cannot write) says that he wants to have a will. You are summoned as the attorney to prepare the will. Tom has less than two hours to live. What should you do?
Can an oral will be used in Tom’s case?
What should we do for Tom?
no; [Feb. 2012] The statute authorizing oral wills (for personal property only) is gone
he cant write; use proxy signature at his direction and in his presence
Venue for probate of will and administration of estate
Contents of safe deposit box after T’s death, who can exam
-Contents of safe deposit box may be examined, without court order, in presence of bank official by spouse, child over age 18, person named as executor in the will.
Attorney prepares a will for Tina and supervises the will’s execution. The will is signed by two witnesses, but one of them did not sign in Tina’s presence. As a result, the will is denied probate, and Tina’s estate passes by intestacy to Tina’s heirs. Do the intended beneficiaries have a cause of action against attorney for negligence?
all attorney-client communications are privileged? what about for benefciary?
- an attorney prepared wrongful will has no duty to beneficiary and heir, cant be sued by them, no privity or attorney-client relationship with them
- exception: executor can sue attorney for (i) loss to estate of excess estate taxes paid because of attorney’s negligent estate planning advice or [Smith v. O’Donnell, Tex. 2009] or (ii) loss to estate resulting from allegedly negligent mischaracterization of assets as separate property rather than community property that led to decedent’s (and thus his estate’s) liability.
Where attorney represents trustee [or executor], all attorney-client communications are privileged, cannot be discovered by beneficiaries. Attorney’s duty runs only to fiduciary who retained him; no attorney-client relationship with beneficiaries.
holographic will: my wife gets everything till she dies, and i leave to her all real & personal property.
if challenged by daughter as to if this is life estate or will
where a will is reasonably capable of more than one meaning and there is no indication of any evidence that would cure the ambiguity, TX courts reply on rules of construction as to T’s probable intent
strong presumption that person who writes a will intends to completely dispose entire estate rather than have portion pass by intestacy
although no particular words needed to create life estate, in the absence of remainder man, its doubtful
where lay person writes the will courts are reluctant to place great emphasis on technical terms
