Jones v. Jones, 649 S.W.3d 577 (Tex. App.—Houston [1st Dist.] 2022, no pet. h.).


Execution Formalities

About six months after his first wife died, the testator married his second wife. On the same day as the wedding, he executed a will leaving his estate to his second wife but if she predeceased, to his three children with his first wife. The testator initialed and dated each of the first six pages of his seven page typewritten will. The seventh page contained only locations for the testator’s signature and for the witnesses to attest; no substantive or administrative provisions. Although four witnesses attested on the page seven, the testator neglected to sign this page. The testator also did not sign the self-proving affidavit.


Twenty-two years later, the testator died. His second wife offered the will for probate and one of the testator’s children contested the will claiming it was invalid because it was not executed with the formalities required by Texas law. Testimony of two of the witnesses clearly reflected the will ceremony and the testator’s initialing of the first six pages of the will. Nonetheless, the trial court denied probate because the testator did not initial page seven’s attestation clause and did not sign the self-proving affidavit. The second wife appealed.


The First District Houston Court of Appeals reversed. The court explained that long-established Texas law recognizes that initials may constitute a signature and that the location of the signature is not specified by statute. Thus, the testator properly signed his will. The court rejected the child’s claim that the document was incomplete and lacked testamentary intent because the testator drafted it and knew that he did not sign the last page and the self-proving affidavit. [In my opinion, the failure to sign the last page and self-proving affidavit was because of the excitement of the wedding being the same day and the couple’s honeymoon starting the next day.]


The court also rejected the child’s claim that the will was not properly witnessed because the witnesses testified they saw the testator sign the will rather than initial the will. The court reviewed the testimony of the witnesses which showed that they signed their names in the testator’s presence. There is no requirement under Texas law that the witnesses actually see the testator sign the will. The witnesses don’t even need to know that the document they are witnessing is a will. And, initialing is a method of signing.


Moral:  A will execution ceremony should be meticulously conducted to prevent claims that something went amiss with the required formalities.