In re Estate of Pruitt, 249 S.W.3d 654 (Tex. App.—Fort Worth 2008, no pet.).
Testatrix left nominal amounts in her will to her estranged children
and the bulk of her estate to Beneficiaries. The evidence revealed that
the witnesses attested to the will before Testatrix signed the will. The
trial court determined that this “backward” order was fatal to the
validity of the will and granted a summary judgment that Testatrix died
intestate. Beneficiaries appealed.
The appellate court reversed. The court examined Texas cases. The older
cases adopted a strict rule that the attestation must occur after the
testator signs the will because witnesses cannot attest to something
that has not yet happened. The modern cases, however, adopt a
contemporaneous transaction approach so that if the execution and
attestation occur at the same time and place and form part of the same
transaction, it does not matter in which order the events occur. The
court adopted this latter approach. After studying the evidence, the
court determined that there was a genuine issue of material fact and
thus held that the trial court erroneously granted summary judgment.
Moral: The testator should execute the will before the witnesses attest
to avoid disputes based on the temporal order of these events.