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This article is fifth in a series on what to consider and steps to take when planning for preservation of your estate and affairs — or those of a loved one. Prior articles in the series, include
“What Happens When You Die…”
As we’ve discussed in prior installments, securing your intentions in a Will is wise, and updating your Will frequently is better. However, too much of a good thing can still get you in trouble. When you update a Will with new information, it is important that the process is completed carefully and with attention to detail. The omission of certain technical clauses can put a wrench in your future probate.
In this article, we’ll walk through the repercussions of having multiple Wills at your time of death, and the process of bringing a Will to probate when it is one of several versions. While multiple Wills present a challenge for the probate process, experienced probate attorneys have the skills necessary to see you through.
Revocation Clause
When drafting a Will, probate attorneys employ the use of the “revocation clause.” The revocation clause is a statement, usually in the first few paragraphs of the Will, that states that the present document is the Last Will and Testament of Decedent, and any/all other Wills and codicils are explicitly revoked. The revocation clause makes it clear to the courts and the heirs that no other document governs the distribution of assets.
If this clause is omitted, there is ambiguity as to which document governs the distribution of assets. In this case, there are a few rules to determine which Will is the controlling document.
Latest is Greatest
To avoid confusion and long, argumentative court proceedings, there is a general “latest is greatest” rule when it comes to multiple Wills. Even if a new Will lacks a revocation clause, if the document is otherwise properly constructed and verifiable, the court will accept it as the estate’s controlling document.
Proper Construction: Elements of a Valid Will
Previously, we talked about what elements make a valid Will. To be probated, a Will must include all the essential elements:
- Proof of a Testator’s Testamentary Intent – Every Will requires language that proves the Testator (the one signing the Will) knows and intends for the document to serve as his Last Will and Testament.
and/or - Signature by the Testator – A Will must contain the signed and dated signature of a Testator. Without the Testator’s signature, or proof of signature on behalf of the Testator, the Will cannot be probated.
The Testator must also be capable of signing the Will in order for the Will to be valid:
- Capacity – The Testator must be of sound mind and able to understand the documents he or she is signing, as well as how the documents will affect the probate and distribution of his or her estate. the documents’ effects.
- Witnesses – Witnesses must be present. These witnesses are disinterested (not inheriting under the witnessed Will) and are able to confirm the Testator’s age, capacity, and signature.
It is highly likely that the Court will approach elements of construction and elements of capacity with higher scrutiny in a contested matter.
Signature Comparison and Witness Testimony
A common part of the authentication process is to compare the signatures of the Decedent across documents. If the latest Will is signed illegibly, or with a signature totally inconsistent with prior writings, that could raise a red flag as to the Testator’s capacity at the time of signing. This is not a hard and fast rule, many folks experience a decline in motor skills as they age, yet retain their mental acuity. But a shaky or illegible signature may require some additional proving up in front of the judge.
One of the ways to prove up a signature’s credibility is to call the witnesses of the Will to testify. The witnesses, as discussed, sign the document to affirm that they (and the Testator) are of appropriate age; sound mind; and identified consistent with his signature. If you find yourself with a signature that raises eyebrows, one or both of the witnesses should be able to testify to the Testator’s identity and capacity.
Witnesses can provide additional insight as to the Testator’s situation and frame of mind at signing. Remember: when the documents are signed, the Testator must be acting under his own power, without being threatened, forced, tricked, or cajoled. If the Testator is unduly influenced into signing, or if he is under duress at the time of signing, the Will is invalid. The witnesses should be able to provide more details of the signing, such as if the Testator was accompanied by anyone, or if he was at ease during the process.
Will Contest
If multiple Wills appear valid, made with capacity, and made without duress, the greatest-is-latest rule governs. However, tensions are often high in times of grief, and it is not uncommon for different family members to prefer different versions of the Will. In this case, you can expect a Will Contest.
A Will contest occurs when two (or more) different documents are brought forth and purported to be the controlling testamentary document. To succeed in a Will contest, you must prove that your document is legitimate (properly constructed, made with capacity, etc.) while discrediting the other documents (attacking construction, asserting issues of capacity or duress, etc.) so that it is made clear to the judge which document is most suitable to serve as the controlling document. Navigating a Will contest is a litigious and stressful ordeal. It requires much more legal know-how than the other scenarios discussed in this series, and will take significant time and effort to resolve. Recruiting the help of experienced attorneys (such as the Estate Planning, Wills, and Probate team at Cowles & Thompson) will ease your passage through those rocky waters.
Avoid AI, Pre-Drafted Wills, and Layperson Drafting
The risk of a Will contest is another reason why it is good practice to work with an experienced probate attorney. Wills must conform to the Texas Estates Code, or risk being ruled as illegitimate or unsuitable to serve as a testamentary document. Attempting to write your own Will, or turning to an online “quick-draft” Will service exposes you to the risks of an improperly drafted document.
A layperson can write their own Will, but the law is finicky, and necessary steps are easily missed if one is not familiar with the procedures and wording, resulting in an improperly drafted or unverified (and thus, unusable) Will. Furthermore, online Will services frequently work from a form bank, simply filling in blanks with your provided information. These services lack specificity and cannot tailor the testamentary document to your personal needs, frequently resulting in unnecessary provisions that bloat and overcomplicate a Will. This lack of personalization frequently creates holes in the Will’s drafting. In a pinch, the State Bar provides a reliable form Will — however, it is still best practice to discuss with an attorney whenever testamentary documents are prepared, especially if you have concerns beyond what the form Will addresses, or if you make any personalization to the form Will.
As always, enlisting the help of an experienced probate attorney to ensure your Will is updated, has all the necessary language and provisions, and accurately reflects your testamentary intent is the best thing you can do to make things easier for your loved ones. But, if you find yourself in a sticky situation, we are happy to help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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