When someone dies unexpectedly, family members often discover handwritten notes among the decedent’s belongings. These notes might express wishes about funeral arrangements or state who should handle affairs after death. The question becomes whether such informal writings constitute valid wills that courts must honor—or whether they merely reflect intentions that never became legally effective.
Texas law requires testamentary intent for a document to qualify as a will. Courts typically emphasize that wills must dispose of property upon death. This requirement seems straightforward until you encounter a handwritten document that appoints someone to serve as executor but contains ambiguous language about property transfer. Does such a document possess sufficient testamentary character to warrant probate admission?
The court addressed this precise issue in In re Estate of Silverman, 579 S.W.3d 732 (Tex. App.—Houston [14th Dist.] 2019). The case provides an opportunity to examine when executor appointments alone can satisfy testamentary requirements and how courts interpret informal language in handwritten instruments.
Facts & Procedural History
Seth was a forensic psychiatrist who died on May 4, 2017. More than a year before his death, he had handwritten a brief document on a piece of paper. The document was dated October 26, 2015. The text stated that Karen was his executor and administrator who “has all legal rights to my estate in the case of my untimely or timely death.” Seth signed the document. Two witnesses also signed it—Jerry and Karen herself.
Karen had worked as Seth’s office manager since approximately January 2015. After Seth died, Karen filed an application to probate the handwritten document as a holographic will. She asked the court to appoint her as independent executrix of Seth’s estate.
Seth’s mother Irma and his two brothers Brett and Gregg opposed probate of the handwritten document. They filed a contest asserting that the instrument was not a valid will. The family members argued that Seth had not executed the document with required formalities. They also alleged that Karen had exerted undue influence over Seth. The family requested that the court deny the document admission to probate and distribute Seth’s estate under Texas intestacy law.
The contestants filed an amended traditional motion for summary judgment. They argued that no material fact issue existed because the handwritten document merely appointed an executor without conveying any property. Therefore, the document lacked testamentary intent and could not be admitted to probate. The probate court in Harris County agreed and granted summary judgment for the contestants. The court ruled that the handwritten document neither reflected testamentary intent nor transferred or disposed of Seth’s property.
After this ruling, the contestants filed an application to determine heirship. They asserted that Seth had never married and had no children. The probate court signed a judgment declaring that Seth died intestate. The judgment awarded Irma a one-half interest in Seth’s property and gave Brett and Gregg each a one-fourth interest. Karen appealed both the summary judgment denying probate and the subsequent judgment of heirship.
Understanding the appellate court’s analysis requires examining what Texas law demands for testamentary instruments and how that law evolved through judicial interpretation.
The Texas Estates Code Definition of a Will
The Texas Estates Code provides a statutory definition of what constitutes a will. This definition extends beyond the common understanding that wills must dispose of property. According to Section 22.034 of the Texas Estates Code, the term “will” includes “a testamentary instrument that merely appoints an executor.”
This statutory language has remained consistent through multiple iterations of Texas probate law. The original 1955 Probate Code included identical language defining “will” to include instruments that merely appoint an executor or guardian. The Legislature retained this definition when it reorganized probate statutes into the Texas Estates Code. This continuity suggests deliberate legislative intent to recognize executor appointments as sufficient for testamentary status.
The statute’s plain language appears to resolve the question presented in this case. If a testamentary instrument that “merely” appoints an executor qualifies as a will, then Seth’s document should satisfy the definition regardless of whether it transfers property. However, statutory definitions must be read alongside judicial precedent that has developed the common law understanding of testamentary intent.
Texas courts have long held that testamentary character requires certain essential elements beyond what appears in the statutory definition. These judicial requirements create potential tension with the Legislature’s broad definition of what constitutes a will.
Essential Characteristics of Testamentary Instruments
Texas courts analyze multiple characteristics when determining whether a document possesses testamentary character. The maker must have intended to express testamentary wishes in the particular document offered for probate. This intent does not depend on the maker’s realization that he is making a will or his designation of the instrument as a will. Rather, testamentary intent depends on the maker’s intention to create a revocable disposition of property to take effect after death.
Courts have identified three essential characteristics that writings must possess to qualify as testamentary. First, the writing must be revocable during the maker’s lifetime. Documents that create irrevocable interests during life cannot be testamentary because testamentary dispositions remain ambulatory until death. Second, the writing must be ineffectual as a transfer of any rights or interest before death. A document that immediately conveys present interests operates as a deed or contract rather than a will. Third, the writing must operate to transfer, convey, or dispose of the testator’s property upon death.
This third requirement became the focus of the summary judgment proceeding in this case. The contestants argued that Seth’s handwritten document failed to dispose of any property. Therefore, they claimed the document could not be testamentary regardless of its appointment of an executor. The trial court accepted this argument.
The contestants’ position found support in numerous cases stating that testamentary instruments must dispose of property. Courts frequently recite this requirement when analyzing whether documents qualify as wills. However, this common judicial statement does not account for the full scope of what constitutes testamentary character under Texas law.
What the Texas Supreme Court Held in Boyles v. Gresham
The Texas Supreme Court directly addressed whether instruments appointing executors without disposing of property can be admitted to probate in Boyles v. Gresham, 263 S.W.2d 935 (Tex. 1954). That case involved a handwritten letter in which the maker stated that he was writing in case something might happen to him suddenly. The letter expressed that if sudden death occurred, his business would be “in awful shape” with no relatives to handle affairs. The letter directed that all cash and assets be turned over to two named parties “to wind up my affairs in any way they see fit.”
After the maker’s death, one of the named parties applied to probate the instrument. Both the district court and the court of appeals refused probate. These courts held that the written instrument was not a will because it made no testamentary disposition of property. The document merely appointed persons to wind up the decedent’s affairs without directing how property should be distributed.
The Supreme Court reversed after construing the document to determine its testamentary nature. The court agreed that the writing did not dispose of property. The instrument went no further than providing that assets be turned over to the named parties to wind up affairs. The court construed the writing as one that appointed executors but did not purport to dispose of any property.
The dispositive question then became whether such an instrument could be probated when shown to have been executed as a will is required to be executed. After reviewing treatises and relevant case law, the Supreme Court established a new rule. The court held that “an instrument of testamentary nature and properly executed is a will if it appoints an executor, and should be admitted to probate when the required proof is made, even though it makes no devise or bequest or no effective devise or bequest of the testator’s property.”
The Boyles court distinguished cases that described the test for testamentary character only in terms of property disposition. Those descriptions were appropriate for cases that actually turned on whether instruments disposed of property. The court noted that such descriptions are usually sufficient because most instruments purporting to be wills do make disposition of estates. However, the definition is not all-inclusive. It should not be taken to mean that properly executed instruments naming executors cannot be admitted to probate as wills merely because they do not dispose of property.
How Boyles Relates to the Statutory Definition
The Boyles decision predated the current Texas Estates Code but was decided after enactment of the original Probate Code in 1955. The Probate Code’s definition of “will” to include instruments merely appointing executors was already in effect when the Supreme Court decided Boyles. The Supreme Court’s holding therefore provided judicial confirmation of what the Legislature had already established by statute.
The Boyles opinion reflects the court’s view that requiring property disposition for all wills would be inconsistent with both statutory text and sound policy. Testators have legitimate reasons to appoint executors even when property will pass by other means. Joint tenancy property, payable-on-death accounts, and insurance policies with named beneficiaries all pass outside probate. A testator holding only such non-probate assets might still need to appoint an executor to handle final expenses, tax returns, and estate administration.
The rule from Boyles has remained good law for over six decades. No subsequent Texas Supreme Court decision has overruled or limited its holding. At least two intermediate courts of appeals have expressly restated the Boyles holding. One court stated that “a purported will is not entitled to probate where it neither disposes of property nor appoints an executor”—using the negative formulation to confirm that appointment of an executor alone suffices.
The consistency between Boyles and the statutory definition creates a strong foundation for admitting executor-appointing instruments to probate. However, courts must still determine whether particular documents actually appoint executors with testamentary intent or merely express non-testamentary desires.
When Courts Construe Documents Before Admitting Them to Probate
Generally, courts do not construe wills in proceedings for their probate. Determining whether a purported will is testamentary in nature typically does not involve document construction. Construction of property dispositions usually occurs after a writing has been determined to be a will and admitted to probate. The Texas Estates Code provides that wills are not effective to prove title or possession of property until admitted to probate.
However, courts have recognized exceptions to this general rule. It may be necessary or appropriate to construe a writing offered for probate when doing so is required to decide whether the writing is testamentary. Additionally, courts have construed disputed language in purported wills before admission when an interested party seeks declaratory judgment. The contestants in this case had filed a motion for declaratory judgment along with their summary judgment motion. This procedural context permitted the appellate court to engage in document construction before final probate determination.
When construing purported testamentary instruments, courts apply well-established principles. Construction presents a question of law subject to de novo review when the instrument contains no ambiguity. However, when a will is reasonably susceptible to more than one meaning, ambiguity exists and interpretation usually becomes a fact issue. Whether ambiguity exists is itself a legal question.
Courts generally interpret will language according to plain, ordinary meaning unless the will shows words are used in another sense. If the law affords a word technical legal meaning, courts ordinarily presume the testator intended this technical usage unless the will indicates otherwise. But informal language used by a layman who drafted a will without an attorney’s aid receives liberal interpretation rather than technical construction. Courts construe lay-drafted instruments liberally to effectuate the drafter’s intent.
Did Seth’s Document Dispose of Property?
The contestants argued that the document merely granted Karen legal rights as executor but did not bequeath property rights. They contrasted dictionary definitions for “legal right” versus “property right.” A legal right is defined as a right created or recognized by law—the capacity of asserting a legally recognized claim. A property right is defined as the right to specific property whether tangible or intangible. Under these definitions, the contestants contended Karen received only executor rights and powers without ownership rights to any property.
The contestants supported their position with case law holding that certain language does not bequeath property. One case held that language authorizing an administrator to “dispose of property as they see fit” did not constitute a property bequest. Another case reached the same conclusion regarding language authorizing control of property “as he may deem best and proper.” These cases suggested that administrative powers differ from beneficial ownership.
Karen took the opposite position. She argued that the phrase stating she “has all legal rights to my estate in the case of my untimely or timely death” effectively devised all of Seth’s property. She compared this language to the phrase “Everything is yours Darling,” which the Texas Supreme Court had stated could effectively devise property in Hinson v. Hinson, 280 S.W.2d 731 (Tex. 1955).
The Court of Appeals concluded that both interpretations were reasonable. Although “legal rights” may have technical legal usage in certain circumstances, no authority establishes that “legal rights” in an alleged testamentary instrument means only personal representative rights rather than rights to bequeathed property. The court hesitated to attribute any technical legal meaning to the term given that the document was handwritten by a layman. The court found that “legal rights” as used in Seth’s document was reasonably susceptible to more than one meaning and therefore ambiguous.
The court noted that the document would more clearly support the contestants’ position if it contained language such as “to wind up my affairs in any way she sees fit” after appointing Karen as executor. The absence of such limiting language left the property disposition issue unresolved. Whether the handwritten document disposed of Seth’s property became a matter for the factfinder to decide rather than a question for summary judgment.
The Appellate Court’s Application of Boyles
Even assuming the document did not dispose of property, the Court of Appeals held that it still qualified as a will under Boyles. The court viewed Seth’s instrument naming and appointing Karen as his “executor [or] administrator” as materially indistinguishable from the part of the instrument in Boyles that effectively appointed executors. The contestants did not dispute that the handwritten document appointed an executor.
The court reasoned that if the handwritten document did not transfer or attempt to transfer property, it still appointed an executor and for that reason could be admitted to probate. This conclusion required only that other necessary testamentary characteristics exist. The Boyles holding combined with the statutory definition of “will” in Section 22.034 compelled this result.
The Court of Appeals rejected the contestants’ argument that the handwritten document lacked testamentary intent because it did not dispose of property. The contestants had cited Preston v. Preston, 617 S.W.3d 841 (Tex. Civ. App.—Amarillo 1981), for the proposition that writings without expressed language evidencing testamentary disposition are not wills. However, the appellate court found Preston inapposite. The will in Preston had already been admitted to probate. The court of appeals in that case was tasked with determining whether the will lawfully disposed of property or whether the testator died intestate as to certain property. Preston actually affirmed that the instrument was effective as a will for the sole purpose of appointing executors—confirming rather than contradicting the Boyles rule.
The appellate court concluded that the probate court had erred by denying the handwritten document admission to probate on the ground that it lacked testamentary intent due to absence of property transfer. This conclusion rested on two independent grounds. First, the document was ambiguous whether it disposed of property. Second, even assuming no property disposition, the document named or appointed an executor as the parties agreed.
The Takeaway
The Silverman decision reaffirms that Texas law recognizes instruments appointing executors as wills even when those instruments do not dispose of property. This principle derives from both statutory definition and longstanding Supreme Court precedent in Boyles v. Gresham. The Texas Estates Code explicitly includes within the definition of “will” any testamentary instrument that merely appoints an executor. Courts must honor this legislative choice by admitting such instruments to probate when properly executed with testamentary intent.
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