In re Estate of Alexander, 250 S.W.3d 461 (Tex. App.—Waco 2008, pet. denied).
After the probate court opened an intestate administration of
Decedent’s estate, Beneficiary alleged that Decedent made a nuncupative
will. Both the probate and appellate courts held that Decedent did not
speak the alleged testamentary words while in his “last sickness” as
required by Probate Code § 65. The court explained that the courts have
consistently interpreted this statutory phrase as meaning that the
testator must be “in extremis,” that is, on one’s deathbed, to make a
valid nuncupative will. The facts showed that although Decedent was
hospitalized when he spoke the testamentary words, he was later released
and did not die until over two weeks later. Merely suffering from a
chronic illness at the time of speaking the words is not enough.
Note: As of September 1, 2007, Texans may no longer make nuncupative
wills. Acts 2007, 80th Leg., ch. 1170, § 5.05 (repealing Probate Code §§
64 & 65).
Moral: Suffering from a chronic condition at the time of speaking
testamentary words is insufficient to satisfy the “last sickness”
requirement of a nuncupative will unless the decedent spoke the words at
the very last stage of the illness.