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Understanding the Formalities of Different Types of Wills

This comprehensive guide explores the essential formalities required for various types of wills, including attested, holographic, nuncupative, military, and notarized wills. It details the necessary components, such as writing, signing, witnessing, and the presence of witnesses for making a will valid under Texas law. The guide also addresses common concerns regarding beneficiaries as witnesses, self-proving affidavits, and how to conduct a will execution ceremony effectively. Whether drafting or executing a will, understanding these formalities is crucial for ensuring its validity.

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Understanding the Formalities of Different Types of Wills

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  1. 4. FormalitiesIntroduction

  2. Formalities depend on type of will • Attested (witnessed) • Holographic (handwritten) • Nuncupative (oral) • Others • Military • Notarized (UPC)

  3. Formalities Policies • Ritual or cautionary • Evidentiary • Protective • Channeling

  4. 4. FormalitiesAttested WillPC § 59; EC § 251.051

  5. Formalities Overview • Written • Signed • Witnessed

  6. 1. In Writing • No requirement regarding what written on or with.

  7. 2. Signed by Testator • Any symbol executed or adopted by the testator with present intent to authenticate the will.Gov’t Code § 311.005(6).

  8. Sample Signatures

  9. Proxy Signatures • 1. Probate/Estates Code • By the testator’s direction, and • In the testator’s presence.

  10. Proxy Signatures • 2. Notary under Gov’tCode § 4040.0165 • In presence of a witness. • But only if testator physically unable to sign.

  11. Location • None specified in Texas. • Should be at the end or “foot” of will.

  12. 3. Attestation • Number = at least two • In re Estate of Iverson – p. 93 Substantial compliance approach rejected.

  13. Capacity of Witnesses • 1. Legal Capacity • Above 14 +

  14. Capacity of Witnesses • 2. Attestation Capacity • Credible; qualified to testify in court

  15. Capacity of Witnesses • 3. Time • When attestation occurred

  16. Formalities forAttested Wills[continued]

  17. Capacity of Witnesses • 4. Knowledge • Publication not required (witnesses do not need to know they are witnessing a will) • Davis v. Davis, p. 96 • But is needed for SPA

  18. Order of Events • What if witnesses attest before testator signs? • Strict View • Continuous Transaction View [Texas]

  19. Attestation by Mark • Not allowed. • Statute says “their names”

  20. Attestation by Proxy • Not allowed. • Statute says “in their own handwriting”

  21. Location of Attestation • Statute says “subscribe” • But, case law not strict

  22. Presences • 1. Witnesses attest in presence of testator? • Required in Texas. • “Conscious Presence” defined – Nichols p. 102 • Visually-impaired testators • Morris – p. 102, note 5

  23. Presences • 2. Witnesses attest in each other’s presence? • Not required in Texas.

  24. Presences • 3. Testator signs (or acknowledges a prior signature) in presence of witnesses? • Not required in Texas.

  25. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 1. Effect on will • None – will remains valid.

  26. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 2. Effect on beneficiary’s gift • Void, unless an exception applies.

  27. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 3. Exceptions • a. If beneficiary is also an heir, beneficiary receives smaller of will and intestate share.

  28. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 3. Exceptions • b. Will is otherwise established (e.g., another witness).

  29. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 3. Exceptions • c. Corroboration by disinterested and credible person.

  30. Self-Proving AffidavitPC § 59; EC §§ 251.104 & 251.1045 • Substitutes for in-court testimony of witnesses when will probated. • Saves time, expense, and inconveniencewhen probating will. • Does not “strengthen” the will.

  31. Self-Proving AffidavitPC § 59; EC §§ 251.104 • 1. Traditional – two-step with “double” signatures. SPA is separate document.

  32. Self-Proving AffidavitPC § 59; EC § 251.1045 • 2. Modern (as of September 1, 2011) – one- step with “single” signatures. SPA is inside the will.

  33. Self-Proving Affidavit • The Boren issue – p. 105

  34. Selecting Witnesses

  35. Selecting Witnesses • Normally, little thought given.

  36. Selecting Witnesses • 1. Witnesses familiar with testator

  37. Selecting Witnesses • 2. Supernumerary witness

  38. Selecting Witnesses • 3. Youthful and healthy witnesses

  39. Selecting Witnesses • 4. Traceable witnesses

  40. Selecting Witnesses • 5. Witnesses who would favorably impress judge and jury.

  41. Will Execution Ceremony

  42. Will Execution Ceremony -- Purposes • 1. Psychological benefits

  43. Will Execution Ceremony -- Purposes • 1. Psychological benefits • 2. Effectuate client’s intent

  44. Will Execution Ceremony -- Purposes • 1. Psychological benefits • 2. Effectuate client’s intent • 3. Limit exposure to malpractice claims

  45. Will Execution Ceremony –EPD July 2012 [replaces pp. 109-116] • 1. Before ceremony • 2. Ceremony • 3. After ceremony

  46. Warning!!! • Drafting a will and supervising a will execution ceremony = the practice of law. • Do NOT engage in this conduct until licensed. • NO exception that testator knows you are unlicensed or you are not being paid.

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