Read the summary and the most important questions on (11) TX Wills and Estate Administration

• Wills I-II, Estate Administration

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• Holographic (handwritten, unwitnessed) Wills: Due Execution

  TX allows holographic (handwritten and unwitnessed wills): Must be (1) wholly in testator’s handwriting;  and (2) signed by testator; 

• Proof of Lost Wills in Probate Solely to Show it Revoked a Prior Will

  Even though a will cannot be probated as a lost will because its contents cannot be proved, the existence or the will can nonetheless be established to show that it revoked an earlier will.

• Testamentary Capacity: 4-Prong Test

  To establish that testator had testamentary capacity, it must be shown that, at the time the will was signed, the testator had sufficient capacity to: 
  

  • (1) Understand the nature of the act he was doing (writing a will);
  • (2) Know the nature and approximate value of his property;
  • (3) Know the natural objects of his bounty (whether he was married, number of kids, etc); and
  • (4) Understand the disposition that he was making. 

• Burden of Proof on Testamentary Capacity

  (A) If will is contested at the time it is offered for probate, the burden of proof is on will proponent to show that testator had testamentary capacity.
  
   
  (B) After the will is admitted to probate (upon proof of proper execution), the contestants have the burden to prove that the testator lacked capacity and must file a will contest within 2 years. 

• Undue Influence - Context

  Even if the testator had the capacity to make a will, the will can nonetheless be challenged as the product of undue influence (testamentary capacity subjected to and controlled by dominant influence or power). 

• Holographic Wills - Requirements

  • Wholly in T's handwriting, signed by T, and show that T had testamentary intent ("my will")
  • Doesn't need to be dated. To probate, 2 witnesses must testify as to T's handwriting. 

• Testamentary Capacity: 4 elements

  T must be capable of knowing/understanding in a general way:
  

  • Nature of the act he is doing (that he is executing a will);
  • Nature/extent of his property;
  • Persons who are the "natural objects of his bounty;" and 
  • Disposition of property that he is making (T knows he is signing a will, which will take effect on death). 

• Undue Influence 3 elements

  Contestant must show that T's free agency/capacity were controlled by a dominant influence/power, resulting in a testamentary instrument that expresses the will of the party exerting the influence, not of the testator.
  

  1. Existence + exertion of undue influence;
  2. Effect of which was to overpower the mind/will of the testator; and 
  3. Product of which was a will that would not have been executed but for the influence. 

• When will an inter vivos gift be considered an advancement of a devise under a will

  In order for an inter vivos gift to be considered an advancement of a devise under a will, either: 
  

  • (A) T must acknowledge, in contemporaneous writing, that it's intended as an advancement; OR
  • (B) Recipient must acknowledge, in writing, that the gift was an advancement (the recipient's acknowledgement needn't be contemporaneous). 

• Out of State "Self-Proving" Affidavit

  An affidavit will be recognized if its terms are in substantial compliance with the Texas form.