Requirements for a Duly Executed Will

1. T must be 18 years old (or married or in armed forces)

2. Signed by testator OR by someone at T’s discretion in T’s presence (proxy signature)

3. Two attesting witnesses over age 14

4. Each witness must sign IN TESTATOR’S PRESENCE

Codicil

Def - later amendment or supplement to a will

Note:  must be executed with the same formalities as a will

Texas Law - Duly Executed Will

Texas law does NOT require:

• That witnesses know they are witnessing a will (i.e. no publication requirement)
• That testator sign in the witnesses' presence (T can sign the will earlier)
• That witnesses sign in each other's presence
• That the testator sign at the end of the will 
• That a will contain an attestation clause

--T can sign anywhere on the will and any mark intended as  T's signature will suffice

--A witness can sign the will before T signs the will IF it is a contemporaneous transaction

Attestation Clauses

Not required in Texas, but if included will serve as prima facie evidence of the facts recited

Useful when:

• Witness has bad memory
• Hostile witness (witness with too good a memory)

Conscious Presence

1. Not necessary that T actually be able to see witnesses

2. Only necessary that T is conscious of where they are and what they are doing

Proving a Will

Ways to prove a will:

• Testimony of one attesting witness in court (if witness lives outside the county, testimony may be secured by deposition or interrogatory)
• If all witnesses are dead or cannot be located, testimony of two persons as to the signature of T or of either attesting witness

Venue

Venue is proper:

• In the county where decedent resided, or
• If decedent had no domicile or fixed place of residence in the state:
• county where principal property located, or
• county where he died

Safe Deposit Box

The contents of a safe deposit box may be examined by, without court order, in the presence of a bank official by:

• Spouse
• Child over age of 18, or
• Person named as executor in the will

Note:  a will found in a safe deposit box may be delivered to:

• Executor named in the will, or
• Probate court

Self-Proving Affidavit

Purpose - Serves as a substitute for the live testimony of an attesting witness in open court

Procedure - T and witnesses sign the will and then execute a sworn affidavit before a notary public

Note:  If the witnesses sign the self-proving affidavit, but fail to sign the will:

• 1966 Texas case - will is invalid
• 1991 statute - signatures on affidavit CAN be used to validate the will, BUT the will is then NOT self-proved (i.e. you can only use the signatures once)

Attorney Liability

• Privity of K is required
• intended beneficiaries may NOT sue an attorney for negligence
• only the client who contracted for his services may sue

Discovery

Where attorney represents trustee (or executor), all attorney-client communications are privileged and cannot be discovered by trust beneficiaries

Attesting Witness is Beneficiary

A beneficiary under a will may be an attesting witness without affecting the validity of the will, BUT the bequest to the witness is void, UNLESS:

• The will can be proved without the interested witness's testimony, or
• The interested witness's testimony is corroborated by the testimony of a disinterested and credible person, or
• The interested witness would be an heir if the will were not probated, in which case the interested party takes the lesser of:
• the legacy under the will, or
• the intestate share

Holographic Wills

Texas recognizes holographic (handwritten, unwitnessed) wills as long as they are wholly in the handwriting of the testator and signed by the testator

• Extrinsic evidence IS admissible to show testamentary intent
• A will does NOT have to be dated in Texas
• A holographic will can be valid in Texas even though not valid in the state where it was written
• Surplusage Rule - extraneous printed words, not necessary to complete the will or its meaning, CAN be disregarded

Adding to a Will

When determining if a later writing should be allowed as a valid codicil to a will, consider:

• Was the document written with testamentary intent?
• Was the document intended to be offered for probate?

Note:  to be a will or codicil, the document must be intended to take effect at death (i.e. a document that is operative during lifetime cannot be a will…but may be a promissory note if consideration was given for the promise)

Oral Wills

Requirements of an oral will:

• Made in last sickness at his home, or if he takes sick away from home and dies before returning,
• For personal property only,
• If will disposes of more than $30, must have 3 witnesses

Anti-Lapse Statute

General Rule - when a will beneficiary predeceases the testator, the gift lapses (fails), UNLESS the gift is saved by the state's anti-lapse statute

The Texas anti-lapse statute applies ONLY when the predeceasing beneficiary is:

• A descendant of the testator's parent, AND
• Leaves descendants who have survived the testator by 120 hours (5 days)

Note:  if the predeceasing beneficiary is not survived by any descendants…the property goes into the testator's residuary estate

Surviving Residuary Beneficiaries Rule

Rule - where the residuary estate is devised to two or more persons, and the gift to one of them lapses, the remaining beneficiaries take the residuary estate in proportion to their interests.

Note:  anti-lapse statute trumps "surviving residuary beneficiaries" rule.

Class Gifts

Def - named as a group, not individually (i.e. - children, brothers . . .)

• In a gift by will to a class of persons, if a member of the class predeceases the testator, the class members who survive take
• Trumped by the Anti Lapse Statute if applicable 

Class Gifts: When does it close

• Closes when some class member is entitled to a distribution (subject to Gestation Principle) - In a will closes on the testator's death
• This is a rule of "convenience"

Per capita

Def - By the head; One share for each descendant 

Per stirpes

Def - by the roots; One share for each family line 

Note: Gifts to descendants include adult adoptees

Void Gifts

• If a beneficiary is dead when the will is executed then the gift is void.
• But the lapse rule; anti-lapse statute; surviving residuary beneficiaries rule apply
• Exception - if a class member was dead when the will was executed, the anti-lapse statute does NOT apply

When do Intestate Succession Rules apply?

• Decedent left NO will or no valid will
• The will does not make complete disposition of the estate (partial intestacy) OR
• An heir successfully contests the will and it is denied probate

CP: Survived by spouse and descendants who are all spouse's descendants

ALL goes to the surviving spouse

CP: Survived by spouse and descendants who are NOT all spouse's descendants

• Surviving spouse gets her 1/2 of the CP;
• The descendants split the decedent's 1/2 community property among themselves per capita with representation

Separate Property Def

Property owned by either spouse before marriage; property acquired during marriage by gift, will or inheritance

SP (Personal): Survived by spouse and descendants

• Surviving spouse gets 1/3 ALWAYS
• Children or descendants of any marriage get 2/3

SP (Personal): Survived by spouse and NO descendants

ALL goes to the surviving spouse - parents, collateral kin NEVER inherit separate personal property

SP (Real): Survived by spouse and descendants

• Surviving spouse gets 1/3 life estate

• Descendants get remainder (2/3 outright and remainder in the 1/3 life estate)

SP (Real): Survived by spouse and NO descendants

• Surviving spouse gets 1/2 
• Parents (or descendants of parents) get the other 1/2

SP (Real): Survived by spouse and nobody else

ALL to the surviving spouse.

Answering questions with surviving spouse

Always mention: homestead; exempt personal property set aside; and family allowance

How do descendants take property

Per capita with representation - go to the FIRST generational level at which there are living takers and give 1 share for each of those lines

Not survived by spouse or descendants

• 1/2 to each parent if living
• If only parent is alive and collaterals are alive - 1/2 to the parent and per capita with representation to collaterals

Half-bloods

Get 1/2 as much as whole bloods

Degree of relationship allowed with a collateral

No laughing heir statute - if no parents or descendants of parents then 1/2 to maternal grandparents and their kin and 1/2 to paternal grandparents and their kin until heirs are found on both sides.

Non marital child - inheriting from their natural father

Generally NO, unless:

• Presumption of paternity under family code
• Man signed sworn stmt acknowledging paternity
• Paternity was established in a paternity suit
•  Paternity is established in probate proceedings by clear and convincing evidence **

Paternity presumption under family code

• Child was born during or within 300 days of marriage
• Parties married after child's birth and man voluntarily asserts his paternity: recorded file; consenting to being named on the birth certificate; OR promising in a record to support the child
• During first 2 years of child's life he resided with the child and represented to others that the child was his

Mother's and children born out of wedlock

No question as to who the mother was - kid can inherit and mom can inherit from kid

Adoption by Estoppel

Equitable right for a stepchild to inherit from their step dad if the step dad did something to promise adoption and did not follow through, otherwise there can be no inheritance from a step dad

Inheritance rights of adopted kids

• Established parent-child relationship for ALL purposes
• Can also inherit from natural parents unless there has been a decree terminating the parent-child relationship, they can't inherit from you though

120 Hour Rule

• Must survive 120 hours to take as an heir (testate or intestate)
• Treat the person who dies within 120 hours as predeceasing the decedent
• Anti lapse statute applies in WILLS
• If the will requires survival, or covers simultaneous death the 120 Hour Rule does NOT apply
• Applies to life insurance policies; joint and survivor bank accounts; and property held JTROS

120 Hour Rule and CP

Treat each spouse as having survived the other

Disclaimer Elements

• Must be written, signed and acknowledge
• Must be filed within 9 months after decedent's death
• Must be filed with the probate court with a copy to personal representative

Disclaimer: who can do it

• Intestate heirs
• Testate heirs
• Executor or guardian on behalf of deceased, incapacitated or heir
• Parent can NOT on behalf of their children, only a personal representative may

Effect of Disclaimer

• As if disclaimant predeceased the decedent
• Anti lapse statute applies

Reasons to Disclaim

• Avoid gift taxes
• Avoid creditor's claims

Beneficiaries and Disclaimers

• Irrevocable trusts: w/in 9 months after trust is created
• Revocable trust: w/in 9 months of becoming irrevocable
• life insurance: w/in 9 months

Lifetime Gifts to Heir or Beneficiary

Is NOT an advancement (reducing share), Unless:

• Declared as such in contemporaneous writing by the donor OR
• Acknowledged as such in writing by the donee

Unauthorized Commercial use of Decedent's name or likeness

Recovery for damages goes:

• 1/2 to surviving spouse and 1/2 to descendants
• ALL to the surviving spouse if no descendants
• All to descendants if no spouse
• all to parents if no spouse or descendants
• property right expires 1 year after death, if none of the above

Testator MARRIES after will is executed

Rule - Marriage following execution of a will has no effect on the will b/c the CP system gives adequate assurances to spouses

The spouse can assert some claims against HSP:

Probate homestead

• $15,000 cash allowance in lieu of homestead
• Family allowance - amt needed for support for 1 year
• Exempt personal ppty set aside (up to $60K of tangible personal ppty items)
• $5000 allowance in lieu of exempting personal ppty

Testator is DIVORCED after will is executed

Rule - Divorce or annulment of a marriage revokes all gifts and fiduciary appointments in favor of former spouse.  Read the will and distribute the estate as though former spouse predeceased the testator

Note: If the couple reconciles and remarries - then the W takes under the will.  The statute applies to revoke the gifts and fiduciary appointments only if they are divorced at the testator's death

Child BORN or ADOPTED after will is executed

If no other children when will is executed - child takes intestate share of ALL ppty not bequeathed to other parent

If there are other children but they are not provided for - child takes intestate share of all ptty not bequeathed to other parent

If there are other children who are provided for then the child's share is limited to the gifts to such other children.  Nobody else's gift is reduced.  If the children provided for were devised different amounts then give the pretermitted child their fair share of each gift

Republication by Codicil

Under the doctrine of republication by codicil, a will "speaks" (is deemed to have been executed) on date of last codicil to will.  

Ex) T makes a will leaving all to brother…has a kid….executes a codicil changing executor of will….T dies….kid is treated as having been born BEFORE the will was executed

Rule - A will can be revoked

• By a subsequent testamentary instrument executed with like formalities (the formalities required for a will) OR
• By physical act (by the testator destroying or canceling the will or causing it to be done in his presence [proxy revocation])

Presumptions as to Revocation

Where will last seen in T's possession or control is not found after death, presumption: T destroyed will by physical act with intent to revoke.

Where will last seen in T's possession or control is found in torn or mutilated condition, presumption: T revoked the will by physical act.

These presumptions do not arise if will last seen in the possession of someone adversely affected by its contents.  

Evidence is admissible to rebut the presumptions

Proof of Lost Wills

• Due execution must be proved
• Cause of will's non-production must be proved (must overcome presumption of revocation raised by will's nonproduction)
• Contents must be substantially proved by one who has read will or heard it read

Rules covering CHANGE made on face of executed will

Words added to a will after the will has been executed are disregarded as unattested words

T CAN make a holographic codicil to a typewritten will as long as it meets the requirements for a holographic will (signed, wholly in T's handwriting). 

BUT the codicil must be a complete thought on its own, outside the typewritten context of the will (i.e. T can't just scratch out portions of the will - he must write something new at the bottom that can stand by itself)

If the will is a holographic will - then T CAN cross out stuff in the will to change it, BUT the crossouts ad interlineations will only be valid if the evidentiary test is met (2 persons who can testify its wholly in T's handwriting

Partial revocation by physical act

Not recognized in Texas - can't scratch out a gift to a person to revoke it

Reviving an earlier will

Texas applies the c/l doctrine of no revival of revoked wills.  Thus, once T creates a new will that revokes the earlier will - that earlier will is "legally dead" and cannot be restored to testamentary effectiveness unless

(a) re-executed with attesting witnesses or

(b) republished by a duly executed codicil ("This is a codicil to my earlier 1995 will...")

What if a person has more than 1 document labeled "last will"

Read the two instruments together.  The second "last will" is treated as a codicil to the first will and revokes the first will ONLY to the extent of inconsistent provisions.  BUT, if the second instrument is wholly inconsistent with the first (first will gives "all ppty" to X and second gives "all ppty" to Y) - then the first will is revoked by implication.  

Revocation of codicil

Revocation of codicil to a will does not revoke the will; the part of the will that was modified or revoked by the codicil is restored and takes effect as though the codicil has never been executed

Types of gifts/bequests

Specific devise or bequest - I devise BA to my son John

Demonstrative legacy - A general amt from a specific source (I bequeath $25K to be paid out of the proceeds of the sale of my Exxon stock to Sally)

General legacy - I bequeath $10K to my nephew Ned

Residuary gift - I give all the rest, residue, and remained of my estate to B

Intestate ppty - Ex: partial intestacy b/c the will, poorly drafted, does not contain a residuary clause.  

Abatement of legacies to pay debts (this has been tested 5 x since 94)

When there are so many claims against the estate that there are not enough assets to cover all of the gifts made by the will and there is no provision in the will that addresses this - devises and legacies abate in the following order.  Within each category, bequests and devises abate pro rata

1. Intestate ppty (if the testator died partially intestate)
2. Residuary estate - personal ppty
3. Residuary estate - real ppty
4. General legacies of personal ppty
5. General legacies of real ppty
6. Specific bequests of personal ppty
7. Specific bequests of real ppty
8. Demonstrative legacies - not specifically dealt with by the statute but likely would be treated the same as specific bequests to the extent of the value of the specific ppty and as a general legacy to the extent of any excess (Ex: If the will made a bequest of $25K to be paid out the proceeds of the sale of my Exxon stock but the Exxon stock was only worth $16K at T's death - for abatement purposes it would be treated as a specific bequest as to 16K and a general legacy as to $9K

Pro Rata Apportionment Rule Governs Death Taxes

Rule - Absent contrary will provisions - death taxes are apportioned (on a pro rata basis) among all persons interested in the estate (beneficiaries of both probate and nonprobate transfers).  

Exception - Beneficiary of interest that qualifies for charitable or marital deduction gets benefit of that deduction --> does NOT have to contribute pro rata

Formula

Value of each testamentary & nontestamentary gift

Total value of taxable estate

Ademption - been tested 10 times since 1986

Rule - Where the testator's will makes a specific bequest of a particular item of property, and the item does not exist as a part of her estate at the time of her death (the item is sold, taken by eminent domain, or lost) the bequest is "adeemed", i.e. it fails completely

Note: Ademption only applies to SPECIFIC gifts.  Thus, if T gives B a demonstrative or general legacy - B will get that and other assets must be sold if needed

Note: Texas applies the c/l "identity" doctrine, under which ademption is applied as an objective test; testator's probable intent is irrelevant.  Thus, if T bequeathed a car to his son and at T's death, the car is destroyed - the son does not get the insurance proceeds on the car, rather the son gets the salvage value of the car.  

Gift of sale proceeds - ademption may not apply

Where the testator's will makes a bequest of the sale proceeds of a specific item and that item is not part of the estate at T's death, ademption will not apply if the sale proceeds were clearly traceable

Bequeaths of Stocks and other Securities

If the will bequeath shares of "my" stock - this is a specific bequest and ademption applies

If the will bequeaths shares of stock without the possessive pronoun "my" then we treat this as a general legacy to which ademption does NOT apply.  Thus, the B gets date of death value of the stock

Specific bequest of stock includes stock produced by a stock split or stock dividend declared after the will was executed, but NOT cash dividends declared before death, even though not paid until after death.  For this purpose, the date dividend is declared by the corp controls. 

Thus, a bequest of stock can be specific for one purpose (stock split) and general for another purpose (ademption)

A specific bequest of stock includes securities of another entity owned by T as a result of merger, takeover, consolidation, etc. but does NOT include securities acquired thru the existence of a stock option

Exoneration of Liens

Rule - Absent a contrary will provision, liens on specifically bequeathed property are exonerated from the residuary estate

Exoneration does NOT apply UNLESS testator was personally liable on note secured by the lien

Exoneration ONLY applies to wills…NOT to intestate distributions

Incorporation by Reference

An extrinsic document CAN be incorporated by reference into the will if:

• Writing must be in existence when will executed,
• Will must show an intent to incorporate the writing,
• Document must be clearly identified by language in the will (such that there can  be no mistake as to the identity of the document referred to)

Acts of Independent Significance Doctrine

Rule - acts of independent significance have no effect on terms of the will if:

• It was a lifetime act,
• With a lifetime purpose or motive

Note:  the act CANNOT be motivated by an intent to change the will

Contents of Property Bequeathed

Rule - a bequeath of property (desk, house) does NOT include the contents w/in the property, UNLESS the language of the will specifically provides so

Note: Contents = tangible property and cash ONLY…NOT deeds, stock certificates, etc…

Mistakes or Ambiguities in the Will

Plain Meaning Rule - if there is no ambiguity in the will, the language of the will controls (even if there is a mistake in the will b/c there is a conclusive presumption that T read the will and intended all of its contents)

Extrinsic evidence is admissible to cure a latent or patent ambiguity

Latent Ambiguity - the mistake is NOT apparent on the face of the will

Patent Ambiguity - the mistake IS apparent on the face of the will

Note:  if extrinsic evidence does not cure the ambiguity, the gift fails

Contracts Relating to Wills

A K to make a will or not to revoke a will can be established only by:

• Stating that a K does exist and stating the material terms of the K, OR
• A binding and enforceable written agreement

Notes:

• The execution of a joint will or reciprocal will does NOT of itself suffice as evidence of the existence of a K
• A contractual will can be revoked by giving notice to the other party to the K

Non-Probate Assets

Def - interests that pass at death other than by will or intestacy and are NOT part of the probate estate for administration purposes

Major types include:

• Property passing by right of survivorship (joint bank accounts)
• Property passing by K (life insurance, employee death benefits)
• Property held in trust
• Property over which the decedent held a power of appointment

Note:  A life insurance beneficiary may NOT be changed by a will

Negative Bequests

Rule - words of disinheritance in a will are given FULL effect in Texas…even if there is a partial intestacy

Note:  just because a person is disinherited, that person's children may still inherit as heirs

Powers of Appointment

Purpose - permits the life beneficiary to designate the remaindermen

• If a donee has GENERAL powers of appointment, she can appoint the property to anyone, including herself, her creditors, or her estate
• If a donee has SPECIAL powers of appointment, she can appoint the property ONLY to those members in the specified class
• To exercise a power of appointment, there must be a specific reference to the power (a blanket exercise of the power is insufficient)

Capacity to Create a Will

Testator MUST have sufficient capacity to:

• Understand the nature of the act he is doing (writing a will)
• Know the nature and approximate value of his property
• Know the natural objects of his bounty
• Understand the disposition he is making

Burden of Proof

When contesting a will:

• At time will is offered for probate - proponents have BOP as to capacity
• After will is admitted to probate - contestants have BOP as to capacity

--A will contest must be filed within 2 years

--Only interested parties can bring a will contest (i.e. those with an economic interest that would be adversely affected)

Undue Influence

Contestant has burden of proof to demonstrate:

• Existence and exertion of the influence,
• Effect was to overpower the mind and will of the testator; and
• Product was will (or gift in will) that would not have been made but for the influence

Note:  Influence is NOT undue unless the free agency of the T was destroyed 

The following are NOT enough to show undue influence:

• Mere opportunity to exert influence
• Mere susceptibility to influence due to illness or age
• Mere fact of unnatural disposition (surmise/suspicion NOT enough)

--Evidence of undue influence is usually circumstantial

--Where a will is procured by one in a confidential relationship, there is an inference of undue influence, which is strengthened when there are suspicious circumstances

Lawyer Drafting a Will and he is a Beneficiary

Rule - if a lawyer drafts a will that makes a gift to the lawyer, or to his heir or employee, the gift is void, UNLESS beneficiary was related to T within the 3rd degree of consanguinity

No-Contest Clauses ("in terrorem")

These clauses are given full effect UNLESS the court finds that the contest was brought in good faith AND with probable cause

No-contest clauses do NOT apply to:

• Will construction suits, or
• Actions brought against executors alleging improper administration of estate

Pretermitted statute

Pretermitted statute applies to kids born out of wedlock

Pretermitted child statute does not apply if

(1) child is provided for or mentioned in the will, or

(2) child is provided for by a nonprobate transfer that takes effect at the testator's death. 

For these purposes, a contingent gift is sufficient provision for the child.  If a nonprobate transfer reflects that the testator-parent was mindful of the child, the child has NO rights under the statute