Unfortunately, sometimes a will that should be considered valid in layperson’s terms but will not be considered valid by the courts in Texas. It cannot be “probated.” In this blog post, we explore the issue of a will in Texas that was not properly witnessed. This is just one example, however. If you or a loved one face confusion over a will under Texas law or even the possibility of a will contest, reach out to one of our Dallas probate attorneys for assistance. No two situations are entirely alike when it comes to inheritance disputes.
Will Execution Errors
Consider the following scenario: A will is executed by the testator in the presence of two witnesses, but only one witness actually signs the will. Generally, with the exception of holographic wills, a will must be signed by two people as witnesses. Can a will that fails to meet this technical execution requirement be admitted to probate?
The answer largely depends on the jurisdiction and whether it requires strict compliance with the execution requirements or allows for a relaxing of such technicalities where it is clear that the testator intended it to be his will. Texas, for example, requires strict compliance with the execution requirements. In Texas, if the will is invalid because of a technical deficiency (i.e., only 1 attesting witness), it cannot be probated. See Estate of Iversen, 150 S.W.3d 824 (Tex. App. – Fort Worth 2004, no writ) (reversing ruling that there was “substantial compliance” with will execution requirements where will signed by one witness, but two person testified that they saw testator sign and declare it as his will); Hopkins v. Hopkins, 708 S.W.2d 31 (Tex. App. – Dallas 1986, writ ref’d n.r.e.) (invalidly executed will cannot be probated even if all interested parties agree that it should be probated).
Recognizing that strict compliance with the execution requirements can frustrate the intent of the testator rather than fulfill it, a number of jurisdictions have adopted doctrines excusing harmless execution errors upon a showing by clear and convincing evidence that the testator intended it to be his or her will. For example, California has enacted such a rule to prevent the invalidation of wills because of technical deficiencies. See California Probate Code Section 6110(c)(2) (“If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”). This doctrine allows courts to admit a will despite the nonconformity upon proof that the testator intended it to be his last will and testament.
To avoid execution errors, the best practice is to have your will prepared by an attorney familiar with these requirements to ensure that it complies with all of the formalities.
In this blog post, we learned that Texas and California have differing approaches when it comes to “honest errors” during the execution of wills. Texas law can be considered to be more strict than California law in this respect. However, the scenario described here of a will dispute or will contest under Texas law due to improper witnessing is just one example. There are other examples where a written will may exist and yet the parties to the inheritance come into conflict. If you or a loved one are facing a will contest or will dispute anywhere in the Dallas area, reach out to one of our Dallas attorneys for a consultation. We offices located in both Plano and Dallas for your convenience.