Estate of Lovell, No. 05-18-00690-CV, 2019 WL 3423280 (Tex. App.—Dallas July 30, 2019, no pet. h.).


Community Property Survivorship Agreement

Husband and wife signed a non-holographic joint and mutual will by using a form downloaded from the Internet. However, they did not have the will witnessed. After wife died, husband attempted to probate the will. Wife’s son from a prior marriage successfully contested the will because it was not witnessed. Thereafter, husband applied to have the same document adjudicated as a community property survivorship agreement. The probate court determined that the document met the requirements for a valid community property survivorship agreement and declared that husband was the owner of all of wife’s property. Wife’s son appealed.


The appellate court affirmed. Wife’s son contended that his mother and step-father intended to execute a will and thus it lacked the meeting of the minds necessary to create a community property survivorship agreement under Texas Estates Code Chapter 112 especially after husband testified he had never heard of such an agreement. The court explained that the terms of the document were clear (each was to own all property of the other upon death) and it was signed by both spouses as required by Estates Code § 112.052. Although the precise language recommended in Estates Code § 112.052(c) was not used, it was clear that the spouses intended to create a survivorship right in their community property. The court also rejected wife’s son’s claim that a document labeled as a “joint and mutual will” could not be judicially turned into a community property survivorship agreement by refusing to elevate form over substance.


Moral:  A document labeled as one thing can be validated as a different type of instrument under appropriate facts. And, of course, people should consult an attorney with estate planning expertise rather than downloading a form off the Internet.