In re Estate of Pruitt, 249 S.W.3d 654 (Tex. App.—Fort Worth 2008, no pet.).



Order of Execution and Attestation


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.