Basic will requirements

17 January 2017

Court may construe a will before it is admitted to probate

Many will contests involve a challenge to the validity of a will, such as claims it did not meet formality requirements or that the testator lacked capacity or was subjected to undue influence. However, sometimes the primary dispute is how to interpret one or more provisions of a will. I find this to be most often the case when the will is not prepared by an experienced estate planing lawyer. Unfortunately, homemade wills often contain confusing, unclear, or outright contradictory provisions.  Or a testator may have an excellent will drafted by a lawyer, only to make a homemade codicil that […]
21 June 2012

Drafting a fair will?

Business Insider is a site I read often.  Recently, it had a short article on drafting a fair will. Of course, “fair” is in the eye of beholder and heirs often have differing ideas of what is fair.  However, I agree with the general point of the article, which is that leaving materially unequal distributions is likely to lead to family conflict.  I particularly agree with this point:  “For children, a disinheritance can leave a psychic wound they may never recover from, leading to an all-out war.” In my experience as a probate litigation attorney, substantially unequal distributions are often […]
27 July 2011

Contesting the internet will

I’m not an estate planner and do not evaluate the quality of the will kits available at various book stores or on the internet.  I have heard from colleagues who draft wills and trusts that these form kits are often flawed in substance and fail to comply with various technical requirements of state law or do not really offer the tax benefits advertised. As a probate litigation attorney, I have another perspective on these will kits.  They are easier to challenge than a will or trust prepared by an attorney and where the execution is overseen by an attorney.  I […]
5 May 2008

Estate of Wilson – Applicant failed to overcome presumption regarding lost will

In Estate of Wilson, the Texarkana Court of Appeals held that an applicant failed to overcome the presumption that a lost will had been revoked. Section 63 of the Texas Probate Code provides that a testator can revoke a will by physically destroying it. Under Texas law, when a will cannot be located and was last known to be in the testator’s possession, a presumption arises that the testator destroyed the will. The presumption can be rebutted by evidence that the will was not revoked but instead simply lost, or that it was fraudulently destroyed by some other person. The […]