ing a checking account. Just as the elderly person opens a checking account because it is secure and convenient, he or she should have a Last ,vm and Testament for the

same reasons. Yet, thousands of Texans avoid making a Last Will and Testament. Why?

It is important that the Elder Law attorney understand why his or her clients-or potential clients-are reluctant to execute a Last \iVill and Testament. Following are four possible reasons for this reluctance:

A will reminds people of their mortality.
1. A will reminds people that their personal and financial affairs are not in order, something they do not want others to know about.
1. A will makes people deal with a lawyer, an experience many people would rather avoid.
1. A will costs money.

Understanding why people are reluctant to execute their wills may lead the Elder Law attorney to help them understand and appreciate the benefits of preparing a Last Will and Testament. Among these benefits are the following:

The elderly person will get to choose his or her beneficiaries. I.n the absence of a will, Texas law will determine who takes the elderly person’s assets when he or she dies. Usually, the heirs at law are not the same as the ones the decedent would choose in his or her will.
The beneficiaries will save time and money. If an elderly person has no will, his or her estate is more likely to go through a complex, expensive, and intrusive legal process to determine how the estate will be distributed and creditors will be paid. Planning for a will gives the elderly person the opportunity to organize all documents and everything else related to the estate.
TI1e elderly person can reduce taxes. If the estate is large, it could be subject to federal transfer taxes. ll1rough a Last Will and Testament, someone is able to make certain legal and ethical transfers that would reduce that tax burden.

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171rough the Last\\ ill and Testament, the elderly person can show his or her family just how much he or she cares about them. Having a will simplifies life for the person’s survivors, telling them who gets what assets and appointing someone to administer his or her affairs.

All things considered. the benefits of having a Last Will and Testament by far out weigh the negatjves. It behooves every elderly person to retain the services of an attorney to prepare, draft, and supervise the execution of a Last \ ‘ill and Testament before such person’s eyes close in death.

Intestacy-An Estate Plan by Default (and Something to Avoid)

\.\’hen a Texan dies without a valid will or dies with a valid will that does not encom pass all of the person’s probate estate, the person’s probate property that is not cov ered by a valid will is distributed through a process called intestate succession. l11e intestate distribution scheme in Texas is dependent on both the type of property (i.e., real or personal) and the marital status of the decedent For purposes of this chapter, we shall assume that the decedent died after September 1, 1993, which was the date on which these distinctions took effect.¹

…

Fundamental Requirements and Provisions Relating to Texas Wills

A1though not required to do so, the Texas Legislature has granted individuals the privilege of designating the recipients of their property upon death. Because the abil ity to execute a will is a privilege, a will has no effect unless the testator has precisely followed all the requirements. Texas demands strict compliance with the statutorily mandated requirements.21 A validly executed Texas will must adhere to the following four main requirements: (1) the testator had legal capacity/2 (2) the testator had tes tamentary capacity,23 (3) the testator displayed testamentary intent/ and (4) the will execution ceremony adhered to the requisite formalities.²⁵

:1 Will Formation

A testator must possess both legal and testamentary capacity in order to execute a will.

The testator has legal capacity if he or she is (1) age 18 or older, (2) currently or previously married, or (3) a current member of the armed forces of the United States.26

A testator has testamentary capacity (i.e., “sound mind”) if he or she has (1) suffi cient mental ability to understand the act in which the testator was engaged, (2) suf ficient mental ability to understand the effect of making a wi1l (i.e., to dispose of prop erty upon death), (3) sufficient mental ability to understand the general nature and extent of the testator’s property, (4) sufficient mental ability to know the testator’s next of kin and the natural objects of the testator’s bounty and their claims upon the testator, and (5) memory sufficient to collect in the testator’s mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment as to them.27

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In re Estate of Iversen, 150 SW 3d 824 – Tex: Court of Appeals, 2nd Dist. 2004

TEX. PROB.CODE ANN. § 59(b) (emphasis supplied). Nowhere in this section, or any other, is there any mention of “substantial compliance” with the attesting signature requirements of the will itself contained in section 59(a). Further, no self-proving affidavits were offered in this case.

None of the cases cited by Schoenwandt stand for the principle that “substantial compliance” is sufficient for the attesting witness requirement of a written nonholographic will not accompanied by a self-proving affidavit.

Stephen v. Coleman, 533 SW 2d 444 – Tex: Court of Civil Appeals 1976

[PDF] tdl.org, How to Not Lose Your Mind When Your Client is Losing His: Operating in the Gray Zone of Diminished Capacity

Elder Abuse: The Criminal Aspects of Estates & Guardianships, pdf

[PDF] researchgate.net – The Communicationally Challenged Testator

“[I] nfluence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence.”- in Matter of Kam, 2016

Undue influence implies the existence of a testamentary capacity subjected to and controlled by a dominant influence or power.- in IN RE ESTATE OF RUSSEY, 2019

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– in IN RE ESTATE OF RUSSEY, 2019

:2 Will Requirements

The requirements for a valid Last Will and Testament are laid out in the Texas Estates Code. The Code first sets forth the formalities for attested wi11s, and then makes exceptions for two other types of wills-holographic wills and foreign wills.

:2.1 Attested Wills

Generally, the formalities for attested wills are found in Texas Estates Code§ 251.051.

:2. la In Writing

Texas law provides that a valid Last Will and Testament must be in writing.28 The statute does not indicate what the will is to be written on or written with. However, we note that Texas law defines written to include “any representation of words, letters, symbols or figures.”29

8-3:2.1b Signed by the Testator

To be valid, the Last vVill and Testament must be signed either by the testator in person or by a proxy provided the signature is placed on the will (1) by the testator’s direction and (2) in the testator’s presence.30

Texas law defines a “signature” as any symbol executed or adopted by a person with present intent to authenticate a writing.31 This is very beneficial for the elderly, because pursuant to the law, initials, marks, and nicknames are sufficient to serve as signatures.

Another aspect of the law that benefits the elderly allows a notary to sign a wi11 a a proxy for a testator who, because of a physical disability, is unable to sign his or he1 own Last Will and Testament.32

As regards the placement of the signature, the Estates Code is silent. Although the testator normally places it at the end of the instrument, nothing in the law makes that requirement33

8-3:2.lc Attested by At Least Two Witnesses

Texas law requires that a will must be witnessed by two or more credible witnesses.³⁴ By “credible,” the law means that the witness must be competent to testify in court under the applicable evidence rules.35 The witnesses only need to be above the age of 14.³⁶

The witnesses do not need to know they are witnessing a will. ln other words, pub lication is not required in Texas.Ji 111e witnesses only need to have the intent to give validity to the document as an act of the testator.

1l1e witnesses must attest using ”their names” in “their own handwriting.”38 Accord ingly. artestation by mark or by proxy is not allowed.

Although the stah1te states that the witnesses must “subscribe” (i.e., attest at the end o( the will). Texas courts have not read this requirement strictly.39

111e witnesses must attest “in the testator’s prcsence.”·10 The courts have inter preted this to mean a conscious presence, which means that “the attestation must occur where [the) testator, unless blind, is able to see it from his actual position at the time. or at most. from such position as slightly altered, where he has the power readily to make the alteration without assistance.”41 ‘vVe note that unlike many other states. Texas law does not require (1) the witnesses to attest in each other’s p·resence or (2) the testator to sign the will in the presence of the witnesses.

Although the testator should sign the will before the witnesses attest, Texas courts have not been strict in that regard. lnstead, they have followed the continuous transac tion view so that as long as “the execution and attestation of a will occurs at the same time and place and forms part of one transaction, it is immaterial that the witnesses subscribe before the testator signs.” 2

8-3:2.2 Exception for Holographic Wills

A holographic will is prepared in the testator’s own handwriting.431l1e Code exempts holographic wills from the attestation requirements.H

The will must be wholly in the testator’s handwriting.’15 However, Texas courts have adopted the surplusage approach. This means that non-holographic material will not injure the holographic character of the will so long as the non-holographic material is not necessary to complete the instrument and does not affect its meaning.·16

A holographic will may be made self-proved.47 Because the self-proving affidavit is a separate instrument, it does not need to be holographic.

J:2.3 Exception for Foreign Wills

Effectjve September 1, 2015, Texas created an exception for wills executed outside of the state. According to this exception, a will is valid in Texas, even if it does not meet the Texas requirements, if it meets the requirements of the jurisdiction where (1) lhe will was executed, (2) the decedent was domiciled. or (3) the decedent had a place of residence.·¹⁸

:3 Self-Proved Wills

A Texas testator has the option of making his or her will seU-proved by either (1) add ing an affidavit as a separate document attached to the will⁴⁹ or (2) including the af fida vit within the text of the attestation and execution clauses of the will.jl) In practicality, a11 Texas wi11s should contain this affidavit because it substitutes for the in-court tes timony of the witnesses when the will is probated, thereby saving time and expense. A sample Self-Proving Affidavit is included in this text as Appendix 9A Appendix 9B presents a sample Simultaneous Execution, Attestation, and Self-Proving Will clause.

Valuable Options

In drafting wills for the elderly, the Elder Law attorney must consider several options.

\1/hatever options he or she chooses, the overriding goal will be to enable the smooth transfer of assets from the decedent’s estate to the decedent’s beneficiaries. With this in mind. the attorney should be wi11ing to take advantage of the options discussed below, a11 provided under Texas law.

:1 Independent Administration

Texas law provides that any testator may provide for the independent adrrunistration of his or her estate.’1 In fact, independent administrations are quite common in Texas because they are faster. economical, and more convenient than court-supervised (i.e., dependent) administration. Once the personal representative files the inventory. appraisement, and list of claims, the personal representative administers the estate without court involvement.

Independent administration is possible under three conditions. First, the testator’s wi11 may expressly authorize independent administration.52 Although no special lan guage is needed, most attorneys track the statutory language as fo11ows:

I appoint [NAME OF INDEPENDENT EXECUTOR] as Independent Executor. I direct that there sha11 be no action in the probate court in the settlement of my estate other than the probating and recording of this Last Will and Testament, and the return of any inventory, appraisement, and list of claims of my estate.53

Second, if the testator did not specify the executor to be independent, all of the beneficiaries may agree to have independent administration.51 However, if the will expressly forbids independent administration, the court will not authorize it.55

l11ird. if the decedent dies intestate, the heirs may agree to an independent admin istration.56

:2 Waiver of Bond

In Texas, personal representatives must post bond unless one of the following excep tions applies:

The testator waived bond in the testator_,s will.57
A corporate fiduciary is serving as the personal representative.55
The court waives bond for an independent executor.⁵⁹

l11e bond must be paid from the estate’s assets. Accordingly, it is very common for a testator to waive bond in the will to save the estate-and hence the beneficiaries the cost of the bond.

8-4:3 Carefully Identify Beneficiaries

\Vriting a wilt allows someone to name his or her beneficiaries. He or she can include or exclude-whomever he or she likes. No legal requirement exists that the testator names anyone as a beneficiary. No one has the right to demand to be included in another’s will; the choice is entirely up to the testator.

In writing the will, then, the best approach is to identify each beneficiary by name.

If necessary, use middle names to distinguish the beneficiaries.

Sometimes, identify beneficiaries by class-“the children of … ” or ”the issue of….”If such is the case, it does not hurt to identify the members of the class.

8-4:4 Excluding People From the Will

The law gives the testator the absolute right to select the beneficiaries of his or her estate. Conversely, it does not give anyone the right to demand to be a beneficiary. However, the elderly are often susceptible to the undue influence of unscrupulous persons. How does the attorney protect the elderly client?

8-4:4.1 Disinheritance

The first path open to the attorney is to counsel the client to disinherit certain relatives if the client is so inclined. To disinherit a relative, the testator should do the following:

First, acknowledge the existence of the relative. By so doing, the testator ensures that the disinherited relative cannot claim that he or she was acciden tally forgotten out of the will.
Second, directly state in the will that “no gift is being left, or other provision being made” for that person. Accordingly, that person inherits nothing under the terms of the will. If perchance the Texas laws of intestate distribution direct that this person should take a part of the testator’s intestate estate-should any part of the testator’s estate pass through intestacy, the person will receive nothing.
Third, the will should include a “No Contest Clause.” This clause states that any person who attempts to contest the will would lose whatever bequest he or she may have otherwise received. It should also say that if a court. as part of a will contest, and not as a simple inheritance, decides that someone is legally entitled to part of the estate, that person should inherit only $1.

8-4:4.2 Illegal Beneficiaries

The second path the attorney must take is to protect the client from illegal beneficiaries-those who would take advantage of the elderly client’s susceptibil ity to the undue influence of others. Unfortunately. the term •·others” as used here includes the attorney who drafts the client’s Last Will and Testament, the subscribing witnesses, and the client’s caregivers.

8-4:4.2a Devises to Certain Attorneys and Other Persons

Both the Texas Disciplinary Rules of Professional Conduct and the Texas Estates Code prohibit a lawyer from preparing a will for an individual if the attorney is a bene ficiary and also if the attorney’s parent, child, sibling, or spouse is a beneficiary.tiO This general admonition does not apply to wills where the beneficiary is also the testator’s spouse, ascendant, or descendant, or related within the third degree of consanguini

ty.61 It also does not apply to a bona fide purchaser for value from a devisee in a wil1.o2

8-4:4.2b Bequests to Certain Subscribing Witnesses

Under Texas law, a testamentary gift to a beneficiary who is also a witness to the will is presumed void.@ The testimony of such a witness about the attestation is suspect because he or she has a motive to lie.

Three exceptions exist to this rule. First, the prohibition does not apply if the wit ness would be an heir of the testator if the testator had actually died intestate. If this is the case, the witness may receive the bequest under the will provided it does not exceed the share of the testator’s estate the witness would have taken under intestate succession.(}’

Second, the prohibition shall also not apply if the will can “be otherwise estab lished” such as by the testimony of another witness.t,.;

1l1ird. if the testimony of the witness-beneficiary is corroborated by a disinterested and credible person, the witness-beneficiary may retain the testamentary gift.⁶⁶ vVe note that this “disinterested and credible person” need not be an attesting witness to the will. Considering the people present at the will execution ceremony, he or she would most likely be the attorney who supervised the ceremony!

8-4:4.2c Pre-Emptive Strikes Against Undue Influence

Undue influence occurs when someone-an influencer-exerts pressure and thus causes the testator to include a provision in a will that he or she did not intend to include. Texas law lays out three elements for the existence of undue influence:

the existence and exercise of an influence upon the testator;
which operated to subvert or overpower the testator’s mind at the time the will was executed; and
such that the will would not have been executed but for the influence.

Some Texas courts have listed 10 factors to determine whether the three elements of undue influence existed in any given case. These IO factors are:

the nature and type of relationship existing between the testator, the contes tants, and the party accused of exerting such influence;
the opportunities existing for the exertion of the type of deception possessed or employed;
the circumstances surrounding the drafting and execution of the testament;
the existence of a fraudulent motive;
whether there had been a habitual subjection of the testator to the control of another;
the state of the testator’s mind at the time of the execution of the testament;
the testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted;
words and acts of the testator;
weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise; and
whether the testament executed is unnatural in its terms of disposition of property.67

An attorney called upon to draft a Last Will and Testament for an elderly person who appears suscep6ble to influence and who appears to be under the influence of a

rdomineering relative or someone e1se should act promptly to ensure that he or she is not used as an instrument in a scheme of undue influence.

Testamentary Trusts

In Chapter 9, we sha11 turn our fu1l attention to a11 sorts of trusts as they relate to the elderly. Here, we briefly introduce the concept of testamentary trusts. Expressed in simple terms, a testamentary trust is a tool a testator writes into his or her Last Will and Testament to extend control over property years into the future. The trust sits in the Last Will and Testament, waiting until the testator dies. Upon the testator’s death, the trust is activated to fulfill his or her goals. The goals of such trusts are myriad. Consider the following two possibilities:

A trust for minors. The testator may want his or her estate to pass to his or her children after he or she dies. The children are adults, so they can be beneficia ries under the testator’s Last Will and Testament. However, the testator would also like his or her grandchildren to be beneficiaries of his or her estate, espe cia1ly for their education or their health care if this becomes necessary. But the grandchildren are young and inexperienced. The solution is the creation of a testamentary trust that leaves the grandchildren’s share to a trustee and gives explicit instructions to this trustee about the management and distribution of this inheritance.
1. A trust for a disabled family member. The testator may have a family member who is physically or developmentally disabled. This person may be receiving Supplemental Security Income from the Social Security Administration that pays his or her medical bi1ls. If the testator leaves an inheritance for that per son, he or she may lose the Social Security benefits. To avoid this, the testato can leave funds to a testamentary trust tailored to meet the requirements o the law, providing benefits to the disabled family member while a11owing hirr. or her to retain the Social Security benefits.

As these two above-mentioned examples illustrate, testamentary trusts are useful too]s. The decision whether to include any such trusts in a Last \Vil] and Testament depends on the goals of the testator vis-a-vis his or her relatives and loved ones alive at the time of wil1 preparation.

Safeguarding the Will

Now that the Last Will and Testament is written, the Elder has to figure out where and how to safeguard the document. Texas law provides a mechanism whereby a tes- tator, or a person acting on behalf of the testator, may deposit the testator’s will with the County Clerk of the county of the testator’s residence.68 Before accepting the will for deposit, the clerk may require proof concerning the testator’s identity and resi dence.69 As of mid-2017, the fee for depositing a will with a County Clerk is $5.00.70The

clerk wi11 issue to the testator-or the person who deposits the will on the testator’s behalf-a certificate of deposit for the will.;1

Texas law also stipulates certain procedures to be followed in preparation for the depositing of the will-that is, the enclosing of the will in a sealed wrapper with the name. address, and signature of the testator written thereon72-and afterwards (i.e., the numbering and indexing of the deposited will by the County Clerk73).

1l1e depositing of the will with the County Clerk has no legal effect, and does not enhance the likelihood of the will being deemed valid.7”

See chapter pdf