To admit a will to probate, a trial court must find that it is valid. To be admitted to probate, a will must comply with the statutory provisions governing the formalities to be observed during a will execution. A will not executed in accordance with the prescribed statutory requirements is of no force or effect. A last will and testament must be in writing, signed by the testator, and attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
To be testamentary in character the writing: (a) must be revocable during the maker’s lifetime; (b) must be ineffectual as a transfer of any rights or interest before death; and (c) must operate to transfer, convey, or dispose of the testator’s property upon death.
The cardinal rule of will construction is to ascertain the testator’s intent and to enforce that intent to the extent allowed by law. This intent must be ascertained from the language found within the four corners of the will. The court looks at the instrument’s provisions as a whole and attempts to harmonize them so as to give effect to the will’s overall intent. The court should focus not on what the testator intended to write, but the meaning of the words actually used. In this light, courts must not redraft wills to vary or add provisions under the guise of construction of the language of the will to reach a presumed intent. When there is no dispute about the meaning of words used in a will, extrinsic evidence will not be received to show that the testator intended something outside of the words used. But a court may always receive and consider evidence concerning the situation of the testator, the circumstances existing when the will was executed, and other material facts that will enable the court to place itself in the testator’s position at the time for the purpose of discerning the testator’s intended meaning if a term is open to more than one construction.
If a will is open to two constructions, that interpretation will be given it which prevents intestacy. Where the will contains a residuary clause, the presumption against intestacy is especially strong. The general presumption prevails that the testator intended to dispose of all of his property, and there is no presumption that the testator intended to die intestate as to part of his estate if the words used in the will may carry the whole of his property.
If the decedent left a valid will, there is a strong, rebuttable presumption against partial intestacy. It is presumed the testator intended to dispose of all his property at death by will.
When a testator bequeaths “property” without qualification as to real or personal, the bequest encompasses everything of exchangeable value that the testator owned.
Any property not disposed of by will passes according to intestacy statutes.
If a person dies intestate and unmarried, the estate passes to the decedent’s children and the children’s descendants. If no child or child’s descendants are alive, then the estate passes to the decedent’s parents.
A pretermitted child is one who is born or adopted after the testator’s execution of the will. The pretermission statute presumes that the subsequent child was inadvertently omitted. “The object of the pretermission statute is to guard against testamentary thoughtlessness; it is not a limitation on a testator’s power to dispose of his estate.” In re Estate of Ayala, 702 S.W.2d 708, 711 (Tex. App.–San Antonio 1985, no writ). For the statute to apply, it must “appear from the will interpreted in the light of all the circumstances that the failure to provide for the child or descendant was accidental, due to inadvertence or oversight.” Pearce v. Pearce, 134 S.W. 210, 214 (Tex. 1911).
A bequest or devise can be specific, general, demonstrative, or residuary.
A devise or bequest is specific if (1) it is described with such particularity that it can be distinguished from all of the testator’s other property and (2) the testator intended for the beneficiary to receive that particular item, rather than cash or other property from his general estate. No special words are required to make a bequest specific, though such words as “my,” “owned by me,” “standing in my name,” or “in my possession” are indicative of the specific character of the legacy.
A legacy is a general bequest if (1) it bequeaths a designated quantity or value of property or money and (2) the testator intended for it to be satisfied out of his general assets rather than disposing of, or being charged upon, any specific fund or property.
Demonstrative legacies are bequests of sums of money, or of quantity or amounts having a pecuniary value and measure, not in themselves specific, which the testator intended to be charged primarily to a particular fund or piece of property.
A bequest is residuary if the testator intended for the gift to bequeath everything left in the estate, after all debts and legal charges have been paid, and after all specific, demonstrative and general gifts have been satisfied.
If a devisee does not survive the testator (i.e., the devisee predeceases the testator), the devise fails and is said to have lapsed. A lapsed gift will pass into the residuary estate unless a specific intent to the contrary is shown.
The Anti-Lapse Statute applies unless there is clear language in a will that provides otherwise. A testamentary gift, however, will not lapse if the deceased devisee is a descendant of the testator or a descendant of a testator’s parent and died before (or is deemed to have died before) the testator. For example, a devise or bequest “to my surviving children” or “to such of my children as shall survive me” would prevent the application of the anti-lapse statute because of the survivorship condition.
The descendants of the devisee who survived the testator by 120 hours take the devised property in place of the devisee. This law is known as the Anti-Lapse Statute.
Honorary trust – trust created to hold a devise for an animal.
A devise constitutes a class gift when it grants property to a group of persons bearing a certain relationship to the testator or to each other. A group of persons form a class when they can be designated by the same general name such as “children,” “grandchildren,” “nephews,” “brothers,” or “sisters.” A class gift must be an aggregate sum to a body of persons uncertain at the time of the gift. There exists a presumption that each member of a class takes an equal share in the property.
Absent a contrary intention expressed in the will, the alienation or disappearance of the subject matter of a specific bequest from the testator’s estate adeems the devise or bequest. A will speaks at the time of the testator’s death, and it is the estate the testator then possessed that passes according to the terms of that will.
If a will is found in the possession of the testator at his death, in a state of mutilation, obliteration, or cancellation representing a sufficient act of revocation within the meaning of the statute, then it is presumed, in absence of evidence to the contrary, that the testator destroyed it with the intention of revoking it.
Destruction or other revocatory act of a copy of a will does not constitute revocation of the original will.
To admit a will to probate, the proponent of the will must prove that the testator complied with the applicable statutory formalities and that, at time of executing the will, the testator had legal capacity, testamentary capacity, and testamentary intent to make the will.
A written will may not be revoked, except by subsequent will, codicil, or declaration in writing that is executed with like formalities, or by the testator destroying or canceling the same, or causing it to be destroyed or canceled in the testator’s presence.
To probate a will not produced in court (lost will), the proponent must prove the same things required for an attested or a holographic will and must also prove (1) that the will was duly executed, (2) why the original will was not produced and that the proponent could not produce it by reasonable diligence, and (3) the contents of the will.
The doctrine of dependent relative revocation (DRR) creates a presumption against revocation in circumstances where the testator cancels or destroys a will with the present intention of making a new one immediately, and the new will is invalid for any reason. The theory is that in such circumstances the testator would have preferred the old will to intestacy.
To be considered for its testamentary effect, a holographic instrument must be wholly in the handwriting of the decedent. A signature by initials is sufficient to execute the instrument as a will, if it is testamentary in character, and it need not be dated.
A testamentary instrument may incorporate by reference a document existing at the time of execution if the devise adequately describes such document for it to be capable of identification and the instrument’s provisions make clear the testator’s intent to incorporate the document.
The presence requirement does not require the will to be attested in the sight of the testator, but in the conscious presence of the testator, and requires the testator to have either seen the witness subscribe her name or to have been in a position that he could readily have seen the same by some slight physical exertion.
The declarations of the attestation clause showing due execution of the will are competent and admissible evidence of the facts therein recited. A full attestation clause reciting compliance with all formalities of execution and signed by the witness is prima facie evidence of the validity of the will, although the witness’ memory is faulty, or he contradicts the facts stated in the clause, or where he is dead. The statements of the attestation clause may, however, be rebutted by proper evidence.
Testamentary capacity means that the testator, as of the moment of execution of the will, possessed sufficient mental faculties to understand (a) he was making a will, (b) the effect of making a will, (c) the general nature and extent of his property, (d) the natural objects of his bounty, and (e) possessed the ability to consider the business to be transacted and to form a reasonable judgment about it.
Equity will impress a constructive trust upon any estate assets a murderer would receive through his victim’s will. A constructive trust is considered a “creature of equity” designed to correct an injustice. A person asserting a constructive trust must strictly prove the unconscionable conduct, the person in whose favor the constructive trust should be imposed, and the assets to be covered by the constructive trust. Mere proof of conduct justifying a constructive trust is insufficient.
A claim of undue influence is a ground for setting aside a will distinct from a challenge that the testator lacked testamentary capacity. The burden of proving the elements of undue influence normally rests on the party challenging the validity of the instrument, but in cases involving confidential or fiduciary relationships, the burden shifts to the confidant to prove the fairness of the transaction.