The Trials and Tribulations of a Will
Creative Writing Gone Astray
If there was one document that could benefit from therapy, it would be a will.
A will can be conflicted, contested, and constructed. It can, tragically, suffer from latent or patent ambiguity, inconsistency, and mistakes. It can even contain a negative bequest.
The only good news for a Texas will is that it cannot be stricken by mortmain.
Looking at the hundreds of appellate decisions regarding wills, it would be easy to criticize the various testators for not using the standard form for a will so that all of these complications could have been avoided.
There is only one problem with that: there is no standard form for a will.
Not in the Texas statutes. Not in the Texas common law. Not even on the internet.
Every will is therefore an exercise in creative writing. That leaves a whole lot of words that could be subject to dispute.
To get to that point, however, you have to get past the threshold question: is the document even a will?
How Is A Document Considered A Will In Texas?
In Texas, a document must meet 6 requirements to be considered a will.
First, the will must be in writing. Texas outlawed oral wills in 2007.
Second, the will must be signed by the testator (whose will it is) or be signed by someone else on the testator’s behalf, in his presence and under his direction.
Third, unless the will is entirely in the testator’s own handwriting, his signature must be witnessed by two people who are at least 14 years old and who must sign their names to the will in their own handwriting in the testator’s presence.
Fourth, at the time the testator signed his will, he must be at least 18 years old, or have been married, or be a member of the US armed forces, an auxiliary to the US armed forces or the US Maritime Service.
Fifth, the testator has to be of sound mind and still have the right and power to make a will.
Sixth, the testator’s will has to be written with an intent that it disposes of his property on his death.
Once the document has been determined to be a will, then we can start looking at the content.
What To Look Out For In Your Will
A poorly drawn will can lead to problems and disputes. For example, if a term is used in a will but not defined, then the law fills in the definition. If the will states “I leave my personal effects to Bill,” then poor Bill is going to get the testator’s clothes, toilet articles, eye glasses and dentures because that is how the courts have interpreted the phrase “personal effects.” Bill would have reaped a considerably more gratifying inheritance if the will had stated “I leave my personal property to Bill.” That is because Texas law defines “personal property” as including goods, money, a “chose” in action, an evidence of debt and a real chattel.
A lot can go wrong in a will. Have a little compassion and spend enough time to get it right.
Virginia Hammerle is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. Contact her at legaltalktexas@hammerle.com or to sign up for her newsletter.
