In re Estate of Fuselier, 346 S.W.3d 1 (Tex. App.—Texarkana 2009, no pet.)
Husband and Wife executed a joint will which had only one signature
in addition to those of Husband and Wife. The probate court held that
the will failed because it had only one witness. The appellate court
reversed holding that a co-testator’s signature may also serve as the
signature of a witness even if the co-testator did not intend for her
signature also to be that of a witness to the will.
Moral: First and foremost, do not prepare a joint will under any
circumstances. And, then, make certain that every non-holographic will
has two disinterested witnesses.
A joint will of Husband and Wife leaving the entire estate to one
child began with the phrase, “In the event of our deaths.” At the time
of Husband’s death, Wife was still alive and thus the non-children
beneficiaries claimed that the will could not take effect because the
contingency was not satisfied, that is, both of the testators were not
deceased. The trial court granted summary judgment that the will was
contingent.
The appellate court reversed. The court looked at the conflict between
the singular “event” and plural “deaths” in the will and decided that
the language is susceptible to different interpretations. The triggering
event could be the death of one spouse or it could be the simultaneous
deaths of both spouses. Because the will is ambiguous, summary judgment
was improper and the court remanded for the probate court to construe
the will after considering extrinsic evidence of the Husband’s intent.
Note: A dissenting judge did not believe that a co-testator’s signature
on a joint will could also be considered as a witness.
Moral: First and foremost, do not prepare a joint will under any
circumstances. And then, draft carefully so it is clear whether a will
is absolute or contingent.