Wills

Testamentary Capacity

Bracewell v. Bracewell, 20 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

 

Testatrix executed one will in 1975 leaving her entire estate to Husband and a replacement will in 1989 leaving significant assets to Son. The trial court determined that the 1989 will was invalid because Testatrix lacked testamentary capacity and consequently admitted the 1975 will to probate. Son appealed.

The appellate court affirmed. After a careful review of the testimony of the lay and expert witnesses who testified at trial, the court determined that there was sufficient evidence to support the jury’s finding that Testatrix lacked testamentary capacity when she signed the 1989 will.

Moral: A finding by the trial court of lack of testamentary capacity is difficult to overturn on appeal.


Wills

Formalities

Bracewell v. Bracewell, 20 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2000, no pet.).


The trial court admitted Testatrix’s will to probate without determining that all of the formalities for a valid will were satisfied because the will was accompanied by a self-proving affidavit. Prob. Code § 59. The appellate court affirmed because the self-proving affidavit is prima facie evidence that Testatrix properly executed the will. Prob. Code § 84(a). The contestant presented no evidence or argument to rebut the presumption of formality compliance.

The court, however, paid little attention to the fact that the original will was not presented for probate. Instead, only a photocopy was produced. The court did not discuss how the proponent was able to rebut the presumption of revocation which arises when the original cannot be produced.

Moral: Every will should be accompanied by a valid self-proving affidavit to make the probate process faster, easier, and more economical.



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