Matter of Kam, 484 S.W.3d 642 (Tex. App.—El Paso 2016, pet. denied).

Wills

Formalities

 

Sister sought to admit Father’s will to probate. Brother objected arguing that this will which completely excluded him was invalid for lack of proper execution. The trial court agreed and denied the probate application. Sister appealed.

 

The appellate court reversed and rendered judgment admitting the will to probate. Father prepared his will with the help of Sister’s now ex-boyfriend who was not an attorney by using an Internet form. At a UPS Store, Father executed the will in front of Notary who then notarized the will which included her signature. Later, two of Sister’s friends witnessed the will. Neither witnesses saw Father sign the will and they did not see each other attest to the will. Witness One was confident she attested in front of Father. However, when Witness Two attested, Father was not in the same room and thus was not a valid witness.

 

Consistent with prior cases, the court held that Notary could serve as the second witness to satisfy the two-witness requirement for non-holographic wills under Estates Code § 251.051. The court rejected Brother’s claims such as that (1) witnesses need to be able to describe the contents of the will, (2) the testator must sign the will in the presence of the witnesses, and (3) the testator must speak at length with the witnesses before they attest.

 

Moral:  A carefully conducted will execution ceremony will reduce problems such as those that arose in this case. And, of course, a testator should hire an experienced estate planning attorney rather than using a child’s boyfriend to help prepare a will.

 

Wills

Will Contests

Undue Influence

 

Sister sought to admit Father’s will to probate. Brother objected arguing that this will which completely excluded him was invalid because of undue influence. The trial court agreed and denied the probate application. Sister appealed.

 

The appellate court reversed explaining that “means, motive, and opportunity are not enough to show undue influence as a matter of law.” Id. at 652. The court explained that there was insufficient evidence to support a finding that Father was unable to make his own decisions about the passage of property upon his death. The court recognized that Sister influenced Father to execute his will and that Father was unlikely to have signed his new will without her influence. However, Brother did not present legally or factually sufficient evidence to show that Sister overwhelmed Father’s free agency. The evidence showed that Father was strong-willed, mentally sharp, drove his own car, and lived mostly independently. Merely because Father excluded one child from the will is not evidence of undue influence.

 

Moral:  Evidence of undue influence must show that the testator’s free will was supplanted by that of the influencer; mere opportunity to do so or assistance with will preparation is insufficient.

 

Estate Administration

Attorney's Fees

Successful Admission to Probate

 

Sister sought to admit Father’s will to probate. Brother objected arguing that this will which completely excluded him was invalid either for lack of proper execution or undue influence. The trial court agreed and denied the probate application. In addition, the court denied Sister’s attorney’s fees determining that she did not act in good faith or with just cause. Sister appealed.

 

The appellate court reversed. Because the court ordered that Father’s will be admitted to probate, Sister conclusively established that her application was in good faith and with just cause. In fact, the good faith and just cause analysis is irrelevant when the will is actually admitted to probate. Accordingly, Sister was entitled to her attorney’s fees under Estates Code § 352.052.

 

Moral:  A successful will applicant is entitled to reasonable attorney’s fees and the applicant’s good faith or just cause is irrelevant.

 

 

 



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