Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577 (Tex. App.—Fort Worth Nov. 15, 2018, no pet. h.).

Wills

Proxy Signature

 

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.

 

Estate Administration

Attorney's Fees

 

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.

 



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