As probate attorneys, we see a lot of wills that just don’t cut it. We see everything from wills that fail to name executors, that fail to mention anything about death or dying, that fail to have witness signatures, etc.

While we get that folks like to save a few dollars and skip the estate planning attorney, doing so is almost always a problem.

The recent Powell and Huseman v. Smith, No. 03-24-00558-CV (Civ. App.–Austin Oct. 9, 2025) provides an example. It involves a will that was well intended, and even stated that family disputes are to be avoided, but it created and led to years of probate litigation. The dispute hinged on the inclusion of the phrase “as the family sees fit.”

Facts & Procedural History

Bryan died in April 2022. He left behind a holographic will from 1998. The will stated that “after expenses, all remaining funds go to my Son.” The will specifically provided that Bryan’s car would also go to “my Son, Smith,” with any loan balance to be paid from estate funds.

The final substantive provision stated: “Everything else shall be divided up and/or disposed of as the Family sees fit. No fighting or other unpleasantness is allowed.”

When Bryan died, his surviving relatives included his son Smith, his brother James P., and his sister Alice.

Smith applied to probate the will and for independent administration under Section 401.002(b) of the Texas Estates Code. The application incorrectly stated that Smith was an executor named in the will. More significantly, the application declared that Smith was the only distributee of the estate and the only person required to receive notice under Section 401.004.

The trial court admitted the will to probate and appointed Smith as independent administrator in September 2022. Smith then filed a certificate of compliance stating that no notice to beneficiaries had been provided because he was the only beneficiary named in the will.

James and Huseman, Bryan’s siblings, learned of the probate proceeding and filed a motion to vacate the appointment. They argued they had not received notice and had not consented to Smith’s appointment. They pointed to the provision about “the Family” and argued this language made clear that Bryan intended distributees beyond just Smith.

They sought declaratory relief under the Texas Uniform Declaratory Judgments Act, requesting the court declare them beneficiaries under the will.

The Standard for Interpreting Wills Under Texas Law

Texas courts examine wills to determine the testator’s intent. That intent is ascertained by looking at the language within the four corners of the will. Courts must harmonize all parts of the will where possible. Every sentence, clause, and word must be considered.

The controlling question is not what the testator intended to write. The question is the meaning of the words actually used. If the court can give a certain or definite legal meaning to those words, the will is unambiguous. The court then construes it as a matter of law.

A term does not become ambiguous simply because parties offer different interpretations. The siblings in this case argued that the word “Family” included them. Smith argued it did not. The existence of competing interpretations alone did not make the provision ambiguous. The court needed to determine whether the language, properly construed, created a testamentary disposition to anyone beyond the son.

What Constitutes a Testamentary Disposition?

A “devise” under Section 22.008 of the Texas Estates Code means a testamentary disposition of real property, personal property, or both. A testamentary disposition transfers ownership of specific property to an identified recipient. The will must do more than reference people or express a general desire. It must actually transfer property rights.

Bryan’s will plainly created testamentary dispositions to his son. The will stated that “all remaining funds go to my Son” after expenses. It provided that his car also would “go to my Son.” This language transferred ownership. Smith became the devisee of the funds and the car.

The siblings relied on what they termed the “residuary clause.” That provision stated: “Everything else shall be divided up and/or disposed of as the Family sees fit.” They argued this language made them devisees because they fell within Bryan’s intended meaning of “Family.”

Does a Direction to Divide Property Transfer Ownership?

The Court of Appeals examined whether the provision created a testamentary disposition to the siblings. The court noted that the clause did not actually transfer property to any identified devisee. Instead, it directed “the Family” to “divide up and/or dispose of” the property “as they see fit.”

This distinction proved decisive. The provision delegated decision-making authority to “the Family” regarding how to distribute or dispose of Bryan’s remaining property. It did not transfer ownership of that property to them. The language essentially said: whoever “the Family” includes should decide what happens to these items.

The court reasoned that while the siblings might ultimately receive some of Bryan’s property if “the Family sees fit,” the provision itself did not constitute a testamentary disposition to them. The will gave them potential discretion to participate in allocation decisions. It did not give them ownership rights.

Thus, this court held that Texas courts cannot redraft wills under the guise of construction to reach a presumed intent. Language is either transfer language or it is not. By framing the provision as a direction to “the Family” rather than a gift to specific individuals, he left them without enforceable rights to notice or participation in the probate proceeding.

The Takeaway

This case shows that language in a will has to do more than reference people or express general wishes. It has to actually transfer property rights to create devisees with legal interests in the estate. A provision directing family members to decide how to divide property delegates authority without creating ownership. Those family members are not devisees entitled to notice of probate proceedings or consent rights for independent administration. This is why we, as probate attorneys, have to carefully distinguish between provisions in wills that transfer property and provisions that merely delegate decision-making. The language matters.

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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.