What makes an attested will valid?
Under Texas law, there are four requirements for an attested will to be valid:
This article will discuss each of these requirements in turn.
1. What is legal capacity?
Much like with contracts, Texas law requires a person be old enough to make a valid will. This is because wills are important documents that distribute all of a person’s estate after they die. It is important that the author of a will (the “testator”) is old enough to understand the importance of creating and executing a will.
Under § 251.001 of the Texas Estates Code, in order to have the capacity to create a will the testator must be either: (1) 18 years of age or older; (2) currently or previously married; or (3) a current member of the United States armed forces. If the testator falls under any of these categories, the testator has legal capacity.
This is simple enough, but imagine a situation where a person writes and executes a will before they are 18 years old, they have never been married, and they are not a member of the United States armed forces. The person stores the will for their entire life until they die at 86 years old. Even though wills become effective at death (when the testator is 86 years old), the will is invalid because it was executed before the testator had legal capacity. The testator’s estate will pass as if there was no will (under intestate succession rules). The only ways to save a will that was executed before the testator had legal capacity is to execute a new will when the testator attains legal capacity or to execute a codicil after attaining legal capacity.
A codicil is a modification or amendment to a previous will. To be effective, the codicil must be executed with the same formalities required of a will. When a testator executes a codicil, the previous will is re-affirmed as of the date that the codicil was executed. This is called “republication by codicil.” I will discuss this doctrine in a later article, but as an example, imagine that a person executes a will prior to attaining 18 years of age. After the person is 18, they execute a codicil changing some provisions of their earlier will. When the person dies, the court will treat the entire will as if it was executed on the date that the codicil was executed. Therefore, despite the fact the will was executed before attaining legal capacity, the will is valid because the codicil republished the will.
2. What is testamentary capacity?
Texas law not only requires legal capacity, but also that the testator has testamentary capacity at the time the will is executed. This requirement is reflected in the requirement that the testator be “of sound mind.” See Texas Estates Code § 251.001. To have testamentary capacity, the testator must have all of the following:
The danger of signing a will without testamentary capacity is that the will may be contested. The bar for testamentary capacity is not very high. For instance, capacity to make a will may exist even if the testator would not have the capacity to enter into a contract. These kinds of contests generally arise when the testator is advanced in age and is suffering from some form of dementia. However, evidence that the testator is old, feeble, and in poor health, by itself, is not enough for a court to find that the testator lacked capacity. See Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980).
Similarly, just because a testator might have been found incompetent in the context of a guardianship does not necessarily prove that a person lacked testamentary intent. See Duke v. Falk, 463 S.W.2d 245 (Tex. Civ. App. 1971). This is because of the doctrine of “lucid intervals.” This doctrine provides that even if a person suffers from intermittent senility or delusional episodes, it is possible for the person to have testamentary capacity when they are not suffering from such episodes. In other words, a person can have testamentary capacity if the will is signed during a “lucid interval.” The relevant time for determining if a testator has testamentary capacity is at the moment, they sign the will.
The other situation where testamentary capacity comes up is if the testator suffers from insane delusions. Unlike the situations above, in this circumstance the issue is not that the testator cannot understand the elements of making a will. The problem is instead that the testator was suffering from an insane delusion which caused them to make an unnatural disposition of their property. When a will contestant alleges that the will is a product of an insane delusion, the courts apply a two-part test: (1) the testator must have believed in supposed facts that do not exist; and (2) no reasonable person would believe in the supposed facts. Lindley v. Lindley, 384 S.W.2d 676 (Tex. 1964).
In order to be an insane delusion, the delusion must be based on supposed facts and not a subjective opinion. For example, if a father disinherited his son because the father felt the son did not appreciate his mother, this would not be an insane delusion even if in fact the son did appreciate his mother. However, if the father disinherited his son because he believed that the son was actually a shape-shifting lizard hell-bent on world domination, then this would be an insane delusion because the father based his decision to disinherit his son on supposed facts that no reasonable person would believe.
Finally, in order to successfully challenge a will because of an insane delusion the challenger must show that the will was a product of the insane delusion. For example, imagine a scenario where a father, who is otherwise a well-respected businessman, believed that he was actually a sacred cow in a human body. He writes a will disinheriting his son because his son did not call him enough. After the father dies, the son challenges the will based on his father’s belief that he was a cow. Provided that the father otherwise satisfies the requirements to have testamentary capacity, the son’s challenge will fail because the will was not a product of the father’s unreasonable belief that he was a cow, i.e., the belief did not cause the father to disinherit the son.
3. What is present testamentary intent?
Present testamentary intent means that the will has language showing that the document is intended as a will that will transfer the testator’s property after death. It must be clear that this intent existed when the will was signed. Generally, this issue comes up more in the context of holographic wills (see our article about holographic wills: “Can I write my own will in Texas?”) because holographic wills are entirely handwritten. In the context of typewritten attested wills, there is generally sufficient language to show present testamentary intent such as “this is the Last Will and Testament of (name of testator).” Testamentary intent is discussed in more detail in our article: “Can I write my own will in Texas?”
4. What formalities are required for a valid will?
In addition to the requirements above, there are a number of formalities required in regards to the form of the will, and how the will is executed (signed). These requirements are strict and disregarding any of them will result in an invalid will. Fortunately, these formalities are provided by § 251.01 of the Texas Estates Code. To be valid, the will must be:
First, the will must be in writing. Oral or video wills are not valid in Texas.
Second, the will must be signed by the testator. The Texas Estates Code is silent about where the signature must appear on the document, but it is a good practice to place the signature after the body of the will. Generally, the testator must be the person to sign the will, however, the Estates Code provides an alternative where both: (1) the testator directs another to sign for them; and (2) the person signs in the presence of the testator. This provision allows a proxy to sign for the testator when the testator is physically unable to do so or is illiterate. However, there is no reason that the testator themselves should not sign unless there is no other option.
Third, the will must be attested by two witnesses. Witnesses must be 14 years of age or older and must be credible (competent to testify in court). Further, the witnesses must be disinterested. This means that they are not receiving any property in the will. Under § 254.002 of the Estates Code, if a witness signs a will that leaves them property, the gift to the witness may be void. There are broad exceptions to this rule, but the safest practice is to ensure that the witnesses chosen are not receiving property from the will.
When a witness signs the will, they are attesting that the testator is of sound mind and is signing the will voluntarily. There is no requirement that the witnesses know the content of the will. Witnesses must sign the will in the “conscious presence” of testator. This means that the witness must sign the will in a physical location where the testator can actually see the witness signing the will or at a minimum would be able to see by slightly altering their position (perhaps by turning their head).
For example, imagine that you hire an attorney to draft a will for you. You go to the attorney’s office to execute the will. The legal assistant shows you to the conference room where the attorney is waiting for you. You sign the will and then the attorney takes the will into the adjoining office where he directs two witnesses to sign the will. Then he brings the will back to you. In this example, the will is not valid because the witnesses were not in the conscious presence of the testator when they signed the will.
The safest way to handle execution is to have an “execution ceremony” where the testator signs the will, followed by the two witnesses while sitting at the same table. It should be done in one continuous transaction. If you hire an attorney to draft your will, then they should guide you through execution by holding an execution ceremony. This ensures that there is no question about who is present when the witnesses sign the will.
When your will is offered for probate, at least one of the two witnesses that signed your will must testify that the execution requirements for a valid will were met and that the testator had capacity to execute the will. However, the Texas Estates Code allows testators to create a “self-proved will” to eliminate the need for witnesses to testify through the use of a notarized affidavit in which the witnesses swear that all of the requirements for due execution were met and that the testator had capacity to execute the will (the required language is in §§ 251.104–1045 of the Texas Estates Code).
There are two methods to create a self-proved will. The first method is to include a separate affidavit (signed at the same time as the will) that is attached to the will. The witnesses and testator sign the will, and then sign the affidavit before a notary public. Therefore, there are two steps in this method: (1) all parties sign the will, then (2) all parties sign the affidavit before a notary after being sworn in. This is colloquially known as the two-step method. In 2011, the Texas Legislature added another method in which the language of the affidavit is included in the will. Under this method, the witnesses and testator are sworn in and then sign the will (which includes the affidavit language in the body of the will). This is known as the one-step method.
Although you would think that most attorneys would choose to use the one-step method (considering that it is one less step), many attorneys choose to use the two-step method. This is because not all states have adopted the one-step method. The reason for this is because if a testator had real property in another state, then the will would also need to be probated in the state where the property is located. If the state has not adopted the one-step procedure for self-proving wills, then they may not accept the will as self-proving.
Conclusion:
As you can see, there is quite a lot that goes into ensuring that your attested will is valid. This is why when a client comes to the Law Offices of Gregg & Gregg for a will, we take them through the entire process, from estate planning to the execution ceremony. This allows our clients to move forward with absolute confidence that their loved ones will be protected after the client passes. Although it costs money to have a professional draft your will, it will protect your family from high litigation costs that may result if your will is challenged or otherwise invalid.
If you have any questions about this article or are in need of estate planning services, please contact us to set up a free consultation.
*Please note that this article is intended for educational purposes only and is not legal advice. If you are planning to write a will, we strongly recommend that you hire an attorney.
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