Background: Client possessed a partially handwritten will from a deceased spouse and they wished to begin probate. I researched Texas state statues and case law to obtain what is wholly and completely my opinion.
AWESOME
LAW
151 Pacific Ave.
Huston, TX 00001
Telephone: 253.555.1212
Fax: 253.555.4110
E-mail: janeiawesome@awesomelaw.com
March 23, 2012
Mrs. XXXX XXXXX
4523 N. 6th
Ave.Huston, TX 00001
Re: Thomas XXXXX's last will and testament and the
possible probate of the will.
Dear Mrs. XXXX:
You contacted our office regarding the will hand written by your husband Mr. Thomas XXXX and the issues regarding it being accepted for probate. I have been reviewing statutory law and case law regarding handwritten wills.
On March 10, 2012 you brought in a handwritten will dated and signed by the decedent on December 26, 2011 to our offices and as the spouse of Mr. XXXX you wish to begin the process of distributing his assets. Mr. XXXX passed away on January 30, 2012. Mr. XXXX was purported to be of sound mind until his death.
According to our research, which includes both statutory and case law, we have concluded that Mr. XXXX’s handwritten will face some issues when moving forward with the probate process.
I reviewed Tex. Prob. Code. Ann. §59 (Vernon 1980) which states that every last will and testament shall be in writing and if not in the handwriting of the testator must be attested to by at least two (2) credible witnesses. Your husband’s will is in his hand writing, minus a small portion completed by a trusted neighbor friend, attested to in the affidavit which is included in the will, yet his will also lacks the needed two witnesses.
In addition, I looked at Tex. Prob. Cade. Ann. §60 (Vernon 1980). This law pertains to handwritten wills and makes the further exception that if the document is fully written by hand, the attesting by two subscribing witnesses may be dispensed with as long as it has an affidavit by the testator that it is indeed their last will. The statute requires that it be written “wholly by hand” and your husband’s will lacks this aspect.
In Dean v. Dickey, 225 S.W.2d 999 (1949 Tex. App.) the Texas Court of civil appeals affirmed the trial court's admission of the handwritten will into probate because it demonstrated testamentary intent by disposing of property. At issue in this case was whether a typewritten will could be considered a holographic will within the meaning of Tex. Rev. Civ. Stat. art. 8283, which permitted holographic wills to be witnessed by only one person. They also further stressed the importance of the term “written wholly in the handwriting of the testator.” The court affirmed the judgment of the trial court in Dean v. Dickey by affirming the probate court's denial of the proponent's request for probate of a typewritten will.
I hope this answers any questions or concerns that you may have regarding the will and beginning the probate process. With the affidavit attached to the will, statutory and case law both show that moving forward would be difficult.
Please do not hesitate to contact me with any questions you may have.
Yours Sincerely,
________________________________
Jane I. Awesome,
TBA #00001
Attorney at Law
JIA/k23
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