Chapter 8-3 Fundamental Requirements and Provisions Relating to Texas Wills

• Jurisdiction: United States

8-3 Fundamental Requirements and Provisions Relating to Texas Wills

Although not required to do so, the Texas Legislature has granted individuals the privilege of designating the recipients of their property upon death. Because the ability to execute a will is a privilege, a will has no effect unless the testator has precisely followed all the requirements. Texas demands strict compliance with the statutorily mandated requirements.²¹ A validly executed Texas will must adhere to these four main requirements: (1) the testator had legal capacity,²² (2) the testator had testamentary capacity,²³ (3) the testator displayed testamentary intent,²⁴ and (4) the will execution ceremony adhered to the requisite formalities.²⁵

8-3:1 Will Formation

A testator must possess both legal and testamentary capacity in order to execute a will.

The testator has legal capacity if he or she is either (1) age 18 or older, (2) currently or previously married, or (3) a current member of the armed forces of the United States.²⁶

A testator has testamentary capacity (i.e., "sound mind") if he or she has (1) sufficient mental ability to understand the act in which the testator was engaged, (2) sufficient mental ability to understand the effect of making a will (that is, to dispose of property upon death), (3) sufficient mental ability to understand the general nature and extent of the testator's property, (4) sufficient mental ability to know the testator's next of kin and the natural objects of the testator's bounty and their claims upon the testator, and (5) memory sufficient to collect in the testator's mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment as to them.²⁷

8-3:2 Will Requirements

The requirements for a valid Last Will and Testament are laid out in the Texas Estates Code. The Code first sets forth the formalities for attested wills, then makes exceptions for two other types of wills—Holographic Wills and Foreign and "Certain Other" Wills.

8-3:2.1 Attested Wills

Generally, the formalities for Attested Wills are found in Texas Estates Code § 251.051.

8-3:2.1a In Writing

Texas law provides that a valid Last Will and Testament must be in writing.²⁸ The statute does not indicate what the will is to be written on or written with. However, we note that Texas law defines written to include "any representation of words, letters, symbols or figures."²⁹

8-3:2.1b Signed by the Testator

To be valid, the Last Will and Testament must be either signed by the testator in person or by a proxy provided the signature is placed on the will (1) by the testator's direction and (2) in the testator's presence.³⁰

Texas law defines a "signature" as any symbol executed or adopted by a person with present intent to authenticate a writing.³¹ This is very beneficial for the elderly, because pursuant to the law, initials, marks, and nicknames are sufficient to serve as signatures.

Another aspect of the law that benefits the elderly allows a notary to sign a will as a proxy for a testator who, because of a physical disability, is unable to sign his or her own Last Will and Testament.³²

As regards the placement of the signature, the Estates Code is silent. Although the testator normally places it at the end of the instrument, nothing in the law makes that requirement.³³

8-3:2.1c Attested by at Least Two Witnesses

Texas law requires that a will must be witnessed by two or more credible witnesses.³⁴ By "credible" the law means...