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4. Formalities Attested Will -- § 59

4. Formalities Attested Will -- § 59. 1. In Writing. No requirement regarding what written on or with. 2. Signed by Testator. Any symbol executed or adopted by the testator with present intent to authenticate the will. Gov’t Code § 311.005(6). Sample Signatures. Proxy Signatures.

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4. Formalities Attested Will -- § 59

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  1. 4. FormalitiesAttested Will -- § 59

  2. 1. In Writing • No requirement regarding what written on or with.

  3. 2. Signed by Testator • Any symbol executed or adopted by the testator with present intent to authenticate the will.Gov’t Code § 311.005(6).

  4. Sample Signatures

  5. Proxy Signatures • 1. Probate Code • By the testator’s direction, and • In the testator’s presence.

  6. Proxy Signatures • 2. Notary under Gov’tCode § 4040.0165 • In presence of a witness. • But only if testator physically unable to sign.

  7. Location • None specified in Texas. • Should be at the end or “foot” of will.

  8. 3. Attestation • Number = at least two • In re Estate of Iverson – p. 93

  9. Capacity of Witnesses • 1. Legal Capacity • Above 14

  10. Capacity of Witnesses • 2. Attestation Capacity • Credible; qualified to testify in court

  11. Capacity of Witnesses • 3. Time • When attestation occurred

  12. Capacity of Witnesses • 4. Knowledge • Publication not required (witnesses do not need to know they are witnessing a will) • Davis v. Davis, p. 96 • But is needed for SPA

  13. Review of Will Requirements Previously Discussed • 1. Legal Capacity • 2. Testamentary Capacity • 3. Testamentary Intent • 4. Formalities – Formal Will • a. In writing • b. Signed • c. Witnessed • At least 2 • Above 14 years old • Credible • Publication not required

  14. Order of Events • What if witnesses attest before testator signs? • Strict View • Continuous Transaction View [Texas]

  15. Attestation by Mark • Not allowed. • Statute says “their names”

  16. Attestation by Proxy • Not allowed. • Statute says “in their own handwriting”

  17. Location of Attestation • Statute says “subscribe” • But, case law not strict

  18. Presences • 1. Witnesses attest in presence of testator? • Required in Texas. • “Conscious Presence” defined – Nichols p. 102 • Visually-impaired testators • Morris – p. 102, note 5

  19. Presences • 2. Witnesses attest in each other’s presence? • Not required in Texas.

  20. Presences • 3. Testator signs (or acknowledges a prior signature) in presence of witnesses? • Not required in Texas.

  21. Witness as Beneficiary -- §§ 61 & 62 • 1. Effect on will • None – will remains valid.

  22. Witness as Beneficiary -- §§ 61 & 62 • 2. Effect on beneficiary’s gift • Void, unless an exception applies.

  23. Witness as Beneficiary -- §§ 61 & 62 • 3. Exceptions • a. If beneficiary is also an heir, beneficiary receives smaller of will and intestate share.

  24. Witness as Beneficiary -- §§ 61 & 62 • 3. Exceptions • b. Will is otherwise established (e.g., another witness).

  25. Witness as Beneficiary -- §§ 61 & 62 • 3. Exceptions • c. Corroboration by disinterested and credible person.

  26. Self-Proving Affidavit – § 59 • Substitutes for in-court testimony of witnesses when will probated. • Saves time, expense, and inconveniencewhen probating will. • Does not “strengthen” the will.

  27. Self-Proving Affidavit – § 59 • 1. Traditional – two-step with “double” signatures. SPA is separate document.

  28. Self-Proving Affidavit – § 59 • 2. Modern (as of September 1, 2011) – one- step with “single” signatures. SPA is inside the will.

  29. Self-Proving Affidavit – § 59 • The Boren issue – p. 105

  30. Selecting Witnesses • Normally, little thought given.

  31. Selecting Witnesses • 1. Witnesses familiar with testator

  32. Selecting Witnesses • 2. Supernumerary witness

  33. Selecting Witnesses • 3. Youthful and healthy witnesses

  34. Selecting Witnesses • 4. Traceable witnesses

  35. Selecting Witnesses • 5. Witnesses who would favorably impress judge and jury.

  36. Will Execution Ceremony -- Purposes • 1. Psychological benefits

  37. Will Execution Ceremony -- Purposes • 1. Psychological benefits • 2. Effectuate client’s intent

  38. Will Execution Ceremony -- Purposes • 1. Psychological benefits • 2. Effectuate client’s intent • 3. Limit exposure to malpractice claims

  39. Will Execution Ceremony –pp. 109-116 • 1. Before ceremony • 2. Ceremony • 3. After ceremony

  40. Warning!!! • Drafting a will and supervising a will execution ceremony = the practice of law. • Do NOT engage in this conduct until licensed. • NO exception that testator knows you are unlicensed or you are not being paid.

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