TYPES OF WILLS

SEPTEMBER 2008

By:  James M. Bright, Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

             There are three basic types of wills which may be used to pass property at death, but only one that this firm would recommend.  They are nuncupative (i.e., oral wills), holographic (i.e., handwritten wills) and attested written wills.

            Nuncupative Wills

            Although oral wills may under certain rare conditions be considered valid, they are not favored by courts because they rely very strongly on the attention, intelligence, honesty and memory of those present with the testator at the time of declaration.

            An oral will must be made either at the testator’s home or where he/she resided for ten or more days immediately prior to making the will or when the decedent was taken from his/her house when ill and died prior to returning.

            If the bequest involves property worth more than thirty dollars ($30.00), there must be three (3) credible witnesses who were not only present at the time of declaration, but whom the testator called upon in particular to take notice of his bequest and to bear testimony of his/her wishes.

            It is necessary if the nuncupative will is to be upheld by the court that all three witnesses must substantially agree to words spoken and disposition made.

            As one might imagine, there are some very serious problems with attempting to gain court approval for probate of a nuncupative will.

            In addition to the problems of attention, intelligence, honest and memory already mentioned, timing becomes extremely important and even crucial to enforcement.

            An oral will may be established only if the testator had no opportunity to subsequently prepare a written will.  Example:  If the testator is taken away from home ill and makes a statement before three witnesses regarding disposition of property because he/she believes that quick death is imminent, and if the Testator does not die immediately, but lives for three more months prior to death, the oral declaration is probably not going to be admitted to probate because the testator had a subsequent opportunity to prepare a written will.

            If six months pass after a declaration which was intended to be a nuncupative will, testimony may not be probated as to its contents unless it was reduced to writing within six (6) days of its making.

            Obviously, nuncupative wills are not what most of us would like to rely upon to pass our property at time of death, but they still serve the purpose of reminding us that the law strives to do the “right” thing and provide a means of carrying out a testator’s wishes.

            Holographic Wills

            Probably no other device available in the law conjures up a more romanticized idea of expressing legal intent.

            Can a handwritten will be admitted to probate and give the same stature as a formal attested will?  Yes, absolutely.  There are many holographic wills probated in Montgomery County each month, but, unfortunately, they may be more difficult to probate and often the dollars that a testator attempted to save in will preparation are spent in probate or worse in dispelling confusion as to these true intent of the testator.  There are also many cases where the document which purported to be a will did not meet basic requirements and failed completely.

            Some of the more interesting facts regarding holographic wills include:

1.         Must be wholly in Testator’s handwriting and signed by the testator.

2.         A holographic Will may revoke a prior Will and make a new one.

3.         No witnesses are required for a holographic Will to be valid.

4.         A formal will can be amended or revoked by a valid holographic will or codicil even though not executed with the formality of the will that it revokes or modifies.

5.         Must not be typed because it is not wholly in the handwriting.

6.         Some courts have admitted documents as wills that had other typewritten portions or writing by someone else, but normally those portions are excluded, and the court will look only to that part that is in the testator’s handwriting to determine if it qualifies for probate.

7.         Particular words used are not important so long as:

a.         The intent of the Testator is clear;

b.         The genuineness of the document is certain.

8.         So long as the name of the testator is somewhere in the will in the handwriting of the testator, it may be a valid will even though the signature does not appear at the bottom where one might expect to find a signature.

 

9.         On at least one occasion, a gentlemen experienced a fatal hear attack while in a public restaurant.  On the back of an ordinary greeting card, he had written, “I leave everything I own to Vernice Daniels.”  The inside of the card under a printed greeting had his signature.  The First Court of Appeals held that the intent of the testator was clearly expressed by his handwriting and that his signature was genuine.  The printed portions of the card were ignored as if they did not exist.

 

            Attested Written Will 

            The third and most important type of will discussed herein is the type normally associated with being prepared by an attorney who is knowledgeable in the preparation of wills.

            An attested will must be in writing and unless it is holographic as discussed above, it must be attested by two or more competent witnesses.

            It may be made self-proving which will allow proof and probate of the will without testimony of attesting witnesses.

            Obviously, the easiest and most reliable method of writing a will that the court will uphold is to employ the services of an attorney.  Choose one who is experienced in will writing and have him/her record your wishes. 

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street

in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see- www.houstontxprobate.com