Originally published by Rania Combs.
John was just about to go on vacation and wanted to have a Will in place in case a tragic accident occurred. So, he did what many Americans do: he searched for a Will form online.
He really didn’t have time to read up on what makes a Will valid in Texas. He had less than an hour before heading to the airport. So he printed out a fill-in-the-blank form he found online and quickly filled in the relevant blanks in his own handwriting:
I give my car to my best friend, Joe.
I give the rest and remainder of my estate to my girlfriend, Brenda.
Even though John had living family members, he didn’t include them as beneficiaries. He had been estranged from them for years because of a disagreement, and wanted to make sure neither of his parents inherited any part of his property.
After he filled in the blanks, he hurriedly signed it, placed on the counter near the phone, and rushed to the airport.
His plane crashed in the Gulf of Mexico. Brenda found the fill-in-the-blank Will. Would John’s wishes be carried out?
Since the fill-in-the-blank Will was signed only by John, it would not be considered a valid attested Will. To be valid, an attested Will must be signed by the testator (or another person at the testator’s direction and in his presence), and also signed by at least two credible witnesses.
Holographic Wills are also valid in Texas. Case law holds that if a testator intends for a document to be his Will, it may be valid even though parts of it aren’t in the testator’s handwriting as long the pre-printed words “are not necessary to complete the instrument in holographic form, and do not affect its meaning.” This is known as the “surplusage rule.”
In other words, it would be necessary to ignore all the pre-printed words on the fill-in-the blank Will, considering only the handwritten parts of the Last Will. Unfortunately, because the pre-printed words are typically important to the context of the handwritten words, this may cause the handwritten words to make little sense taken on their own.
In the case of John’s fill-in-the-blank Will, only the following words could be considered:
car my best friend, Joe my girlfriend, Brenda.
Because those words do not clearly express how he wants his assets distributed standing on their own, John’s wishes will likely not be carried out. Without a valid Will in place, the intestacy statutes would control and his legal heirs would be the people he wanted to exclude: his parents.
In this case, it would have been much better for John to forego printed out an internet form and simply write a holographic Will stating his wishes, or better yet, to have planned ahead and contacted a lawyer before his trip to ensure that his wishes were legally documented.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://bit.ly/2C9EVMJ
via Abogado Aly Website
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