Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577 (Tex. App.—Fort Worth Nov. 15, 2018, no pet. h.).
Testator was severely injured in an accident
rendering him a quadriplegic and unable to speak. However, he was able
to communicate by responding to “yes” and “no” questions by blinking his
eyes. Using this blinking system, Testator’s attorney drafted a will and
Testator directed a notary to sign the will for him.
After Testator died, his estranged wife attempted
to probate an earlier will and his sister filed an application to
probate the new will. The trial court admitted the new will to probate
but also awarded the estranged wife $200,000 in attorney’s fees although
the jury had found that she did not act in good faith and with just
cause in attempting to probate the earlier will. The estranged wife
appealed the probate of the new will and the sister appealed the award
of fees.
The appellate court determined that the new will
was valid. The new will was signed by a designated proxy in Testator’s
presence and by his direction as required by Estates Code § 251.051(2).
The court thought the blinking system was sufficient to establish
Testator’s directions. In addition, Government Code § 406.0165
authorizes a notary to sign a document when directed to do so by a
person unable to sign. (The court also examined the evidence which
supported the trial court’s determination that Testator had testamentary
capacity and was not subject to undue influence.)
Moral: A will of someone with limited
physical ability has an enhanced chance of being contested and thus the
drafting attorney should take extra precautions to solidify testamentary
capacity, testamentary intent, and compliance with will formalities.
Testator was severely injured in an accident
rendering him a quadriplegic and unable to speak. However, he was able
to communicate by responding to “yes” and “no” questions by blinking his
eyes. Using this blinking system, Testator’s attorney drafted a will and
Testator directed a notary to sign the will for him.
After Testator died, his estranged wife attempted
to probate an earlier will and his sister filed an application to
probate the new will. The trial court admitted the new will to probate
but also awarded the estranged wife $200,000 in attorney’s fees although
the jury had found that she did not act in good faith and with just
cause in attempting to probate the earlier will. The estranged wife
appealed the probate of the new will and the sister appealed the award
of fees.
The court examined the award of attorney’s fees
despite the jury finding that the estranged wife did not act in good
faith with just cause. The court agreed that the trial court has the
power to overturn a jury verdict but that in this case, it was improper
to do so because the evidence did not establish estranged wife’s good
faith and just cause as a matter of law.
Moral: It will be difficult to uphold a
judgment notwithstanding the verdict unless the issue can be established
as a matter of law.