Testamentary Capacity

In re Estate of Cornes, 175 S.W.3d 491 (Tex. App.—Beaumont 2005, no pet.).


The lower court determined that a holographic will did not meet the requirements of a valid will but failed to specify the exact reason. [Note: Another part of the lower court’s opinion found that will was not in Testatrix’s handwriting but that holding was overturned on appeal.] The appellate court conducted a review of the requirements of a valid will focusing its attention on the “sound mind” requirement of Probate Code § 57. The court explained that Proponent had the burden of proving testamentary capacity and that to overturn the lower court’s finding, Proponent must establish that Testatrix had capacity as a matter of law. After reviewing the evidence, the court determined that there was insufficient evidence of her capacity as of the date of will execution and thus the trial court’s finding was upheld. The court pointed out that although witnesses were available who could have testified as to Testatrix’s capacity around the time of will execution, they had not done so.

Note: The court’s holding had the effect of causing Testatrix’s estate to pass by intestacy because it is coupled with a holding that an earlier will was not subject to probate because the proponents were in default in waiting more than four years.

Moral: A proponent of a will must make certain to put forward sufficient evidence that a testator had testamentary capacity.




Holographic Will – Wholly in Testator’s Handwriting


The lower court rejected an attempt to probate Testatrix’s holographic will on various grounds including that the will was not in Testatrix’s handwriting. The appellate court held that the lower court’s rejection on this ground was against the greater weight and preponderance of the evidence. The court examined the evidence and found that it was clear that the handwriting of Testatrix was proved by two witnesses as required by Probate Code § 84(b). The testimony of only one person cast doubt that the handwriting was not that of Testatrix and even that person admitted giving testimony in an earlier proceeding that the will was in her handwriting. In addition, there was no proof that this person was familiar with Testatrix’s handwriting. [Note: Nonetheless, the court held that the will was invalid because the proponent failed to prove testamentary capacity.]

Moral: To rebut the claim that a will is holographic, a contestant should find someone familiar with the testator’s handwriting who can consistently testify as to that knowledge and that the will is not in the testator’s handwriting.


Estate Administration

Late Probate

Notice to Heirs


Proponents filed a will for probate after four years had elapsed from the date of Testator’s death. Service of process to each heir whose address was ascertainable with reasonable diligence was not given before the probate of the will. Because the lack of notice violated Probate Code § 128B, the appellate court held that the county judge erred in probating the will and that the district court judge erred in failing to grant a bill of review under Probate Code § 31.

However, because Contestant was given a full opportunity to try all issues regarding the late probated will as well as whether an alleged holographic will should be probated instead, the court held that “any error committed by the county court’s failure to issue citation * * * was rendered harmless.” In re Estate of Cornes at 495.

Moral: A proponent of a will being probate more than four years after the testator’s death must be certain to give proper notice to the heirs in compliance with Probate Code § 128B before probating the will.


Estate Administration

Late Probate

"Not in Default" 


Proponents filed a will for probate after four years had elapsed from the date of Testator’s death. Proponents explained that they were “not in default” in failing to present the will within the four year period under Probate Code § 73(a) because they delayed probating their mother’s will “out of respect” for their step-father. They feared that their step-father would be emotionally hurt that their mother included an express provision in the will which provided that she “intentionally made no provision in this Will for my husband * * * and I direct that he shall take none of my property either under this Will or by the laws of intestacy.” Id. at 495. The lower court admitted the will to probate.

The appellate court determined that Proponents’ excuse was insufficient to justify a late probate. The court explained, “we have found no opinion [that] has recognized respect for potential heirs as an excuse for the devisees’ delay in presenting a will for probate.” Id. at 495.

Moral: A proponent of a late probated will needs to show that the delay was not due to the absence of reasonable diligence.