Legal Issues: The Importance of Formality

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

In the day when casual Friday has evolved into “casual Monday through Thursday,” and Fridays have sometimes become “sloppy Friday,” it is easy to think that formality no longer is important.

No where is formality more important than in the signing of your Will. A formal Will to be valid and upheld by the court must be signed by the testator and witnessed by two persons. The testator must be at least the age of 18 years, and the witnesses must be at least 14 years of age. In addition, the testator should request that the witnesses watch the signing of the Will. Each witness and the testator should be able to testify that they were all in the presence of each other, and each saw the other sign.

Not paying close attention to the formalities of the Will signing may yield unintended consequences. This often occurs in do-it-yourself Wills or computer-generated Wills.

A recent example of this occurred in my own practice as follows:

A family member of the decedent hired my firm to probate and settle the decedent’s estate. They presented two Wills prepared by the same person (the decedent) on two separate occasions. The first Will was dated in February and the second was dated in October of the same year.

The February Will was signed by the testator and two witnesses. Although the Will (a computer-generated one) was awkwardly worded and missing some key features that even a first-year lawyer would have included, it met the basic requirements of a Will. Much like “casual Friday,” it met the minimum standards for formality and court recognition.

The Will dated in October was very similar to the one prepared in February. The testator copied some of the language from the February Will including “…publish and declare this to be my last Will and Testament, hereby revoking all Wills and codicils at any time heretofore made by me.”

When signing the October Will, the testator did not ask witnesses to sign but did obtain the services of a Notary Public, to certify that the signature on the Will was hers.

The net effect of the testator’s efforts in preparing her Wills was that she died without a valid Will, therefore, intestate.

Although the February Will probably would have been given validity by the court, the testator declared it to be revoked by the copied language in the October Will and therefore of no force or effect. The October Will was sufficient to revoke the February Will but could not be admitted to probate, because it was not properly witnessed.

The estate of the testator passed by laws of intestate succession as dictated by state statutes and gave no consideration to the wishes of the testator that were different as expressing her Will.

Many people prepare a Will from either a computer program or other self-help source. If you are one of those persons, please be advised that the formalities to be followed at the time of Will execution may be just as important as the Will itself. The following is a “bare bones” instruction to make sure formalities are met:

  1. Your attention is essential in reading the Will/Codicil very carefully. You need to be certain that all persons have been properly identified and that your intentions have been properly expressed.
  2. Initial each page of the Will/Codicil (not required for recognition, but makes it harder for someone else to insert a page).
  3. Gather parties consisting of yourself and two witnesses (use witnesses who are at least eighteen (18) years of age and who are not mentioned in the Will) and a notary public. Many people find that their bank is a convenient place to do this, since a notary will almost certainly be available.
  4. Testator/Testatrix (you) must declare in the presence of both witnesses that:
    1. This is your Last Will and Testament or Codicil.
    2. You have made it willingly and are signing it as your own free act without pressure from anyone, and that it has been made for the purposes expressed in it.
    3. You must request that each person designated as a witness sign the Will/Codicil in the witness spaces provided.
    4. You are at least eighteen (18) years of age and are of sound mind. Sound mind simply means that you know the extent of your property and that you are aware of all persons who might be considered the natural beneficiaries of your estate. You have not omitted any of those persons as beneficiaries without first considering the fact and concluding that it is your wish for your property to pass as described in your Will.
  5. You and both witnesses must be present at the same time, and each should observe the others sign while the notary observes all persons signing.
  6. Have both witnesses attest by their signatures that they have seen the testator sign. If you do not wish the Will to be self-proven, the notary is not needed.
  7. If the Will is to be self-proven (which we highly recommend), there are at least two methods of doing this through the Texas Estates Code. It is important that you adhere to these statutes. One approach requires only one signature for the Testator and witnesses, and the other requires two signatures from each. You are cautioned not to guess how many times that the Testator and witnesses should sign, but to strictly adhere to the dictates of the statute chosen.
  8. The notary public should observe each signature and should then complete a notary acknowledgement, affix his/her seal of office and follow the other formalities of his/her office.
  9. It is suggested (not required) that you do not staple the Will or Codicil into a Will cover until it has been signed, and that staples not be removed after they have been affixed.
  10. You may make as many photocopies of the Will or Codicil as you may need, but the original of the Will will be needed for probate. It is suggested that the original be kept in a safe-deposit box or other safe place. It does not matter where it is kept, however, so long as it is safe and your executor knows where to find the original.

As always, this author would recommend that you seek the advice of an experienced attorney to draft and supervise the execution of your Will.

James Bright has been 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

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