Bustos Law Firm

A Will’s Bare Necessities

In Legal, Texas Law, Uncategorized, Wills on August 30, 2011 at 10:14 AM

The normal goal for a person to have when writing a will is to ensure that all of his property and money are given to the right people after he dies. On the other hand, perhaps the central focus for an attorney drafting a will is to ensure that the will is written in such a way that it would be very difficult to contest. Both of these goals can be reached by following the statutory guidelines for will requirements and by applying common sense and skill to the drafting process.

In Texas, the Probate Code governs the probate process, including the requirements for a valid will. Section 57 describes who may execute a will, and section 59 details the requirements of the will. In order to execute a will, a person must have “legal capacity.” This means that either the testator (person leaving the will) is eighteen years or older, has been married, or is a member of the armed forces. The statute further requires that the testator has “testamentary capacity.” Testamentary capacity is more amorphous than legal capacity. The only language the statute offers to explain testamentary capacity is that the testator must be of “sound mind.” This term has been further defined by Texas case law with the pinnacle case being Stephen v. Coleman, 533 S.W.2d 444 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.). Essentially, testamentary capacity boils down to whether the testator has the ability to understand everything that he is doing in relation to leaving a will and the impact that act will have. A testator must also have “testamentary intent,” which simply requires that the testator intends for the document to be his will.

Other formal requirements are mandated by the statute. The will must be signed by the testator. If the will is attested, as opposed to holographic (entirely hand written by the testator), it must be signed by two witnesses who are older than fourteen. The witnesses must sign at the bottom of the will (subscribe) and must sign the will in the presence of the testator. These requirements seem very simple, yet they only provide the bare minimum of what a will must contain. A will that is valid, and therefore follows all of the statutory guidelines, is not necessarily uncontestable. Great care and skill are often required in drafting a contest–safe will. For further reading, see the Texas Probate Code (especially Chapter IV), accessible at http://law.justia.com/codes/texas/2005/pb.html.

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