22.08 Wills



  ·   Basic Considerations


  ¨   During the lifetime of the testator, the will is of no force and effect in the sense of passing any right or interest.


  ¨   It is revocable during the lifetime of the testator.


  ¨   It operates to pass title to the testator’s property at the instant of death.


  ·   Persons Who May Make A Will

(Estates Code § 251.001).

Every person who has attained the age of 18 years or who is or has been lawfully married, or who is a member of the armed forces of the United States being of sound mind, has the power to execute a will.


  ·   Interest Which May Pass Under A Will

(Estates Code §§ 251.002, 254.001, 254.003, 255.001-255.003).

Any estate, right, title, possession, expectancy, reversion or remainder which a person has, or at the time of his death shall have, of, in or to any lands, tenements, hereditaments, or rents charged upon or issuing out of them, or shall have of, in or to a any personal property whatever, including choices in action, may be devised or bequeathed.


  ·   Requirements For A Will

(Estates Code §§ 251.051-251.052, 251.101-251.106, 254.004).


  ¨   The will, except in case of a nuncupative will, must be in writing.


  ¨   It must be signed by the testator in person, or by another person for him by his direction and in his presence.


  ¨   If is not wholly in the handwriting of the testator (a holographic will), it must be attested by at least two credible witnesses above the age of 14 years.


  ¨   These witnesses must sign the will in their own handwriting in the presence of the testator.


  ¨   They do not have to sign it in the presence of each other.


  ·   Self-Proved Will

(Estates Code §§ 251.051-251.052, 251.101-251.106, 254.004).


  ¨   A will may be made self-proved at the time of its execution or at a subsequent date during the lifetime of the testator and witnesses.


  ¨   The purpose of this is to avoid the necessity of witness testimony in the probate of the will.


  ¨   An affidavit by the testator and attesting witnesses, duly completed, is attached to or made a part of the will.


  ¨   A form of affidavit is provided in Estates Code § 251.104.


  ¨   Self-proving makes it unnecessary to have the witnesses come into court in order to probate or prove the will up.


  ¨   The self-proved will is proved before a notary public rather than being established by proof in open court.


  ·   Holographic Will

(Estates Code §§ 251.052, 251.107).


  ¨   If the will is wholly in the handwriting of the testator it is a holographic will.


  ¨   No attestation is necessary.


  ¨   It may be made self-proved by the attachment of an affidavit of the testator setting forth that it is his last will; that he meets the age requirements or is otherwise qualified; and reciting that


  •   the instrument is his last will;


  •   that he was 18 when he executed it (or if under 18, was lawfully married or serving in the military);


  •   that he is of sound mind; and


  •   that he has not revoked the will.


  ¨   No acknowledgment is required.


  ·   Nuncupative Will

(Estates Code § 254.005).


  ¨   A nuncupative will is one made orally in the presence of witnesses.


  ¨   It is limited to personal property.


  ¨   It is not permitted unless made during the last illness of the decedent, at his home or where he has resided for 10 days prior to the date of the will, unless the decedent is taken ill while away from home and dies before he returns home.


  ¨   If the value of the property exceeds $30 it must be proved by three credible witnesses.


  ·   Bequest to Witness

(Estates Code § 254.002).


  ¨   If a person is a subscribing witness to a will and also a legatee or devisee, the bequest is void if the will cannot be proved without his testimony.


  ¨   The witness/devisee must appear and testify as if the bequest had not been made.


  ¨   However, if such person would have been entitled to a share of the estate if there had been no will, he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will.


  ·   Corroboration of Testimony of Interested Witness

(Estates Code §254.002).


  ¨   If the testimony of the witness who is also a beneficiary under the will (See “Bequest to Witness” above) can be corroborated by one or more disinterested and credible persons, the bequest is not void.


  ¨   In this case such subscribing witness is not regarded as an incompetent or non-credible witness under Sections 251.051-251.052, 251.101-251.106, and 254.004 of the code.


  ·   Revocation of Will

(Estates Code § 253.002).

Once a will has been executed according to legal formalities, it cannot be revoked, in whole or in part, except by a subsequent will, codicil or declaration in writing executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.


  ·   The Joint, Mutual, or Joint and Mutual Will


  ¨   A joint will is not necessarily a mutual will.


  ¨   It is a joint will if it is a will by two or more persons disposing of property owned by them jointly or severally.


  •  In order for the will to be both joint and mutual, it must be the will of two or more persons contained in an instrument, jointly executed by them pursuant to a contract between them to leave their property to each other or to third parties in a specific designated manner.


  • After the death of one, its terms are binding on the survivor.


  ¨   Generally such wills are reciprocal; that is, each leaves his or her property to the other.


  Company Policy: The policy issuing company should obtain approval from company counsel before committing to insure a transaction involving a probate of these types of wills.


  ·   Implications and Inferences


  ¨   A power of sale may be implied in order to pay debts or legacies.


  ¨   A will imposing the duty of collecting debts on the executor may impliedly authorize him to execute releases.


  ¨   A devise in general terms to testator’s wife may imply the power on her part to dispose of the property.


  ¨   A power of sale is not implied where only a life estate is expressly given.


  ¨   A provision authorizing the sale of property will not give rise by implication to a power to mortgage it.


  ·   Ambiguity -- Aids to Construction


  ¨   Grammar, paragraphing and punctuation must always yield to the intent of the testator.


  ¨   Presumptions may also be indulged where the will is capable of two reasonable constructions. These include:


  •  that the will was drawn in good faith,


  •  that the testator intended to dispose of all of his property,


  • that changes would have been made if the testator so desired,


  • that parents will treat all children equally,


  •  that the testator intended to avoid intestacy, and


  •  that the testator knew the applicable law.