In re Estate of Browne, 140 S.W.3d 436 (Tex. App.—Beaumont 2004, no pet.).
The appellate court agreed with Contestants’ assertion that the trial
court erred in granting a summary judgment that Testator properly
executed his will under Probate Code § 59. Contestants presented an
affidavit which supplied facts which could lead to the conclusion that
the witnesses did not attest to the will in Testator’s presence, that
is, they signed the will in a hospital waiting room while Testator was
in his hospital room.
Moral: The witnesses to a will should always attest in close physical
proximity to the testator so the testator may see them attesting.
In re Estate of Browne, 140 S.W.3d 436 (Tex. App.—Beaumont 2004, no pet.).
The appellate court agreed with Proponent that she was not required
to prove that Testator actually read the will or had it read to him
before signing it. These matters may, however, impact whether Testator
had testamentary intent and capacity.
Moral: Even though not legally required under Probate Code § 59, it is
good practice for the attorney supervising a will execution ceremony to
make certain the testator has actually read the will and understands its
contents. The attorney should establish that the testator read and
understands the will in front of the witnesses.
In re Estate of Browne, 140 S.W.3d 436 (Tex. App.—Beaumont 2004, no pet.).
After Testator’s death, his wife of 20 years (Proponent) attempted to
probate his will. His children and step-children contested the will
claiming that Testator lacked testamentary capacity. The trial court
granted summary judgment for Proponent.
The appellate court reversed. The court began its analysis by explaining
that Proponent had the burden of establishing capacity under Probate
Code § 88(b)(1). Proponent did submit sufficient evidence to met this
burden such as affidavits from family members, doctors, and the attorney
who drafted the will. However, Proponents, several of whom were doctors,
submitted evidence that Testator’s medical condition and treatment
(e.g., using a respirator and taking powerful drugs) prevented him from
having testamentary capacity. This evidence was sufficient to raise a
fact question with respect to the existence of testamentary capacity
which precluded a summary judgment in Proponent’s favor.
Moral: A will proponent will have a difficult time sustaining a summary
judgment that testamentary capacity exists if the contestant supplies
evidence with probative value of lack of capacity.