Self-proved will laws
Presumption of Continuity
When no circumstances exist that suggest a will lacks validity or has been revoked, the burden shifts from a proponent to a contestant to prove the necessity of revocation of a will. If the contestant is successful, the burden of proof shifts to the proponent once more.
The Probate Case
Estate of McKinney v. Hair, 434 S.W.2d 217 (Tex. Civ. App. 1968)
Facts & Procedural History
Proponent of a self-proved will appealed from a District Court judgment that denied a will’s application to probate. The District Court approved the motion for an instructed verdict, holding that: (1) there was no indication the court had jurisdiction and venue, and (2) no evidence provided showed that the will had not been revoked.
The Court of Civil Appeals reversed and remanded the case. The Court held that: (1) the evidence provided sufficiently proved Testator’s residency in Falls County; (2) the District Court had jurisdiction and venue; and (3) Proponent had met the burden required to overcome the rebuttable presumption of continuity. For the first issue, the Court looked to Testator’s will, which included a statement regarding his/her residency. The Court stated that declarations made in a will involving a testator’s residence are persuasive and will be accepted unless there is a change of residency prior to death. For the second issue, the Court held that the record, which contained the will itself, was sufficient to prove residence, jurisdiction, and venue. For the third and final issue, the Court stated that Contestant failed to provide evidence that overcame the presumption of continuation, and no circumstances existed which suggested that the will had been revoked or was not genuine.
The Takeaway: Must a Will be dated?
Estate of McKinney v. Hair shows that, without additional evidence suggesting a will has been revoked or is invalid, declarations made by a testator will usually be accepted.
Do you need an Experienced Probate Attorney to help with signing a Will or signature?
When it comes to drafting and signing a will, it’s important to have an experienced probate attorney by your side. After all, this document will determine how your assets are distributed after you pass away. In Texas, the statements made by a testator in a will are assumed to be true. This means that if there is any ambiguity in the will, the court will interpret it in favor of the testator’s wishes. However, if there is clear evidence that the testator did not understand what they were signing or that they were coerced into signing the will in a specific case, the court may invalidate the document. If you’re unsure about whether or not you need an attorney to help with your will, it’s always best to err on the side of caution and consult with an experienced attorney before proceeding with your case. Call us today for a FREE attorney consultation. (210) 436-6601.
What are the three basic requirements of a valid will?
A will is a legal document that must meet certain requirements in order to be valid. In Texas, a will must be in writing, signed by the testator (the person who is making the will), and witnessed by two people. If a will does not meet these requirements, it may still be considered valid if the court finds that it was executed with “substantial compliance” with the law. This means that the court will look at the overall intention of the testator and decide whether or not the will should be upheld. It is important to note that even if a will is found to be valid, the court may still choose to disregard certain provisions of the will if they are found to be against public policy or if they are otherwise unenforceable.
What is a testator clause?
In Texas, a testator clause is a section in a will that states the testator’s wishes regarding how their estate should be distributed after their death. This clause can include any number of requests, including who should receive what assets, how those assets should be divided, and what debts should be paid off. The testator’s wishes are not automatically assumed to be true, however. If there is any question as to the validity of the clause, the court may order an investigation into the matter.
Which of the following indicates that a testator lacks mental capacity?
There are a few different things that could indicate that a testator lacks mental capacity. For example, if the testator is unable to understand the nature and extent of their property, or if they are unable to understand the natural objects of their affection (such as their spouse or children), this could be indicative of a lack of mental capacity. Additionally, if the testator is unable to comprehend the consequences of making or changing their will, this could also be an indication that they are not mentally capable of doing so.
Which of the following is a requirement of a valid will?
In order for a will to be valid, it must be in writing, signed by the testator, and witnessed by two disinterested parties. The statements made by the testator in the will are assumed to be true, and the court will not investigate the truthfulness of these statements. This means that if the testator states in their will that they have no living relatives, the court will not investigate this claim.
What makes a will legal?
There are a few things that must be met in order for a will to be considered legal in the state of Texas. First, the will must be in writing and signed by the testator. Second, two witnesses must sign the will in the presence of the testator. And third, the witnesses must attest to the fact that they saw the testator sign the will and that the testator appeared to be of sound mind and under no duress when signing it.
If a will meets these requirements, then the statements made by the testator in the will are assumed to be true. This means that if the testator states in their will that they are leaving their house to their child, then that child will inherit the house unless there is evidence to disprove what the testator said in their will.