In Estate of Romo, 503 S.W.3d 672 (Tex. App.—El Paso 2016, no pet.).



Lack of Formality


Contestants claimed that a will previously admitted to probate was invalid because the testator lacked testamentary capacity or executed the will when subjected to undue influence. After testimony at the trial that the witnesses did not attest in the testator’s presence as required by Estates Code § 251.051(3), the court granted contestant’s motion for a directed verdict that the will was invalid.


The appellate court affirmed. The court explained that only a will which meets all Texas requirements may be admitted to probate. It was irrelevant that the trial was centered around two other grounds for finding the will to be invalid.


Moral:  A court may set aside a will for failure to comply with the requirements of a valid will even if the contestant does not raise that ground in the pleadings.