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