In order for your Texas will to be valid, it must have at least the following four elements:
1) The identity of the person making the will
2) The document offered as a will must have been made with "testamentary intent," meaning that the person wanted to make a revocable disposition of his or her property at death.
3) The person making the will must have had "testamentary capacity," meaning he/she was over 18 and of sound mind.
4) All statutory formalities must be observed. As of this time, these include three main requirements from Ch. 251 of the Estates Code:
a) Will must be signed by testator OR by another person at his/her direction and in his/her presence
b) Will must be attested by two or more credible witnesses 14 yrs of age or older, who subscribe their names to the will
c) These witnesses MUST sign in the presence of the testator
There are pages upon pages of case law further clarifying what all of these requirements mean, but in general a few interesting things to note are:
1) The identity requirement does not have to be satisfied by a notation at the beginning of the will such as "Last Will and Testament of Joe Schmo." The testator's signature is enough to meet this standard, though of course this is not best practice and is only typically seen in extreme cases. The signature/identity also need not be at the end of the document.
2) While the best practice and certainly most common scenario for showing testamentary intent is that the document being offered as a will is, in fact, labeled as a will and is in the generally recognized form of a will, it is possible to show testamentary intent even if the document doesn't call itself a will. Such as a note that says "I want my daughter to get my house when I die. Signed, Joe Schmo." HOWEVER, note that it is clear from case law that letters or notes directing (for example an attorney) to prepare a will or codicil, do NOT meet the testamentary intent standard and cannot be offered for probate in lieu of a will.
3) If you have concerns about testamentary capacity, you truly and sincerely need to obtain professional legal help to assure that there are not questions later about the execution of your documents. A separate post on this blog gives more detail on the basic contours of this standard, but if there are questions, professional help is needed. Also of interest, persons under 18 have testamentary capacity if they are 1) married or 2) in the armed services.
4) While the will does not technically have to be signed by the testator with the witnesses watching, the witnesses must be in the presence of the testator when they sign. In practice, the best course of action is always to have all witnesses and testator remain together in the room observing each other signing all of the documents.
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Jessica A. Brown, attorney