Wills

In Terrorem Provision

In re Estate of Schiwetz, 102 S.W.3d 355 (Tex. App.—Corpus Christi 2003, pet. denied).

 

Testatrix’s 1992 will was admitted to probate. Later, Beneficiary filed an application to probate four alleged codicils to the 1992 will. The trial court granted Beneficiary’s request for a declaratory judgment that Beneficiary’s attempt to probate the alleged codicils did not trigger the in terrorem provision of Testatrix’s will.

The appellate court affirmed. The court began its analysis by studying the elaborate forfeiture provision which Testatrix included in her will. The court concluded that Beneficiary’s attempt to probate the alleged codicils which were executed subsequent to the will is not a will contest. The court explained that to hold otherwise would in effect declare that the 1992 will was irrevocable. Testatrix’s will was, by its very nature, ambulatory meaning that Testatrix could revoke or change the will as long as she had the capacity to do so.

Moral: A no-contest clause is unlikely to trigger forfeiture if a beneficiary attempts to probate a later will or codicil.

 

Wills

Testamentary Intent

In re Estate of Schiwetz, 102 S.W.3d 355 (Tex. App.—Corpus Christi 2003, pet. denied).

 

Testatrix’s 1992 will was admitted to probate. Later, Beneficiary filed an application to probate four alleged codicils to the 1992 will. These documents consisted of letters and memoranda to Testatrix’s attorney in which Testatrix listed changes she wanted the attorney to make to her will. The trial court granted a summary judgment that these documents lacked testamentary intent and thus were not codicils to Testatrix’s will.

The appellate court affirmed. The court held that the documents clearly and unambiguously lacked testamentary intent. Instead, there were merely instructions or directions to the attorney to prepare new wills or codicils that carried out the requested changes. Testatrix did not intend these actual documents to be wills or codicils.

Moral: Client letters and memoranda indicating provisions which the attorney should include in the will are not themselves wills. To reduce the chance of controversy, the attorney should consider having clients clearly mark such documents as “not a will or codicil.”

 

Wills

Signature

In re Estate of Schiwetz, 102 S.W.3d 355 (Tex. App.—Corpus Christi 2003, pet. denied).

 

A document alleged to be a codicil to a will was deemed to lack the testatrix’s signature. The court held that the indication that the document was “From [Testatrix]” at the top of the page did not operate as a signature. The name was written to inform the addressee of the source of the document rather than to act as a signature.

Moral: A signature to a will should be at the end of the document and clearly reflect the testator’s approval of the document as the testator’s will.



Back