The case of the blinking testator

The case of the blinking testator

In ESTATE OF LUCE, the Fort Worth Court of Appeals considered questions surrounding the validity of proxy signatures and testamentary capacity of an accident victim of executes a substitute will while in the hospital.


Michael and GayeLynne Luce’s marriage was not without conflict. After years of trial separations and attempted divorce the couple finally appeared to split for good. In the Fall of 2015 with Michael and GayeLynne’s divorce proceedings working its way through Parker County, Texas courts, Michael was in an ATV accident that left him a quadriplegic.


Upon admission to the hospital immediately after the accident, an alert Michael told hospital staff that he was going through a divorce and that if he became unable to make his own decisions, he wanted his twin daughters Brandy or Melissa to be his decision makers. If the twins were unable or willing to fill this role his sister Tina would make decisions regarding his affairs.


Seven days after being admitted to the hospital Michael, suddenly went into respiratory failure and was intubated, leaving him unable to speak. However, he was still alert and appeared to have his faculties about him. Later that day, Michael’s attorney, Kevin Ferrier, came to the hospital and met alone with Michael in his hospital room for the purpose of making a will. Previously, in 1998, Michael had executed a will appointing GayeLynne as independent executor and bequeathing his entire estate to her.


Regarding this meeting, Ferrier later testified that he was able to communicate with Michael by presenting a series of leading questions that Michael answered by blinking his eyes to indicate “yes” or “no.” As the probate court heard it was through this system, Ferrier was able to determine that Michael wished to revoke all prior wills and wanted to leave his entire estate to his twin daughters Melissa and Brandy.


A will was quickly drafted by Ferrier in accordance with Michael’s wishes. Ferrier returned to the hospital, read the will to Michael privately and then read the will to Michael again in front of a notary and two witnesses. In the presence of Ferrier and the witnesses, the notary signed the will for Michael gave he had lost the ability to move his limbs due to the accident. Then, while still in Michael’s presence, the witnesses signed the will and the notary notarized their signatures.


Michael died over a month later, on November 26, 2015. Shortly after his death, GayeLynne filed an application to probate the 1998 will. A week later, his sister Tina filed an application to probate the 2015 will and also filed an opposition to Gaye Lynne’s probate application for the 1998 will. GayeLynne followed suit filing an opposition to Tina’s probate application for the 2015 will.


A trial was held on the will contest whereby the jury unanimously found that both wills met the statutory execution requirements and were signed with testamentary intent and capacity. Further, the jury held that the 2015 will was not the product of undue influence, therefore, 2015 will revoke the 1998 will. The wife claimed that it was not a valid will due to the testator not personally signing it. The case was appealed to the Texas Court of Appeals for the Second District, Fort Worth.


On appeal, the court was primarily presented with questions surrounding the validity of the 2015 will, but also considered questions surrounding an award of nearly $200,000 in attorney’s fees and expenses to GayeLynne.
Before the appeals court, GayeLynne argued that 2015 was not properly executed by virtue of the fact that the notary signed for Michael who was physically unable to do so and that Michael did not have the required testamentary capacity at the time of the will’s execution.

The court reasoned that the will was properly executed given that the Texas Estates Code allows that a will to be signed by another person on the testator’s behalf, as long as it is done in the presence of the testator presence and under his or her direction. Further Texas Government Code holds that a notary may sign for a person physically unable to sign for themselves if the proxy signature is executed in front of the individual and a witness with no legal or equitable interest in the document being notarized is present. Here, the notary signing for Michal using the blinking system of communication was found to meet this requirement.


Lastly, GayeLynn also claimed on appeal that Michael did not possess the required mental capacity to execute a new will after the accident. The court noted on this point “Even though Michael was seriously injured in the ATV accident, he did not suffer any head or brain injury.” Testimony showed “that even though Michael was unable to speak because he was intubated, he was alert and lucid and had the mental capacity to understand what was going on and to make his own decisions at the time the 2015 will was executed.” To this end the court cited Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.-Fort Worth 1998, no pet.) which held that “Evidence of physical infirmities, without more, does not tend to prove that a testator is incapable of knowing his family or his property, or understanding the effect of signing the will.” Accordingly, the court found that the will was the product of adequate testamentary capacity. Therefore, the appeals court affirmed the trial court’s finding that the 2015 will was properly executed and reversed the award of attorney’s fees and expenses to the wife.

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