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“THE LEGAL CORNER”

By Sam A. Moak

The Danger of Homemade Wills

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Earlier this week, a good friend of mine sent me a joke that revolved around the death of Aunt Pearl. It seems Aunt Pearl was scared of the dark her whole life, so she asked in her Will that a light be put in her casket, an electric line run underground and a sensor put in place so if the light ever went out they could dig the casket up and replace it. I hear some pretty unique requests for Wills, but nothing quite like Aunt Pearl. But I thought I would present you with a “homemade” Will that I was asked to probate. The names, and numbers, have been changed to protect the individuals involved. The following is a rendition of the Herman Oberweis Will:

“I am writing of my will mineself that dam lawyir want he should have too much money, he ask too many answers about the family. First thing I want I don’t want mine brother Oscar get a G D thing I got. He is a mumser he done me out of forty dollars fourteen years since.

I want it that mine sister hilda get the North Sixtie Akers of at where I am homing it now, I bet she don’t get that gonoph husband of hers to brake twenty akers next plowing. She can’t have it if she lets Oscar live on it, I want I should have it back if she does.

Tell Mamma that six hundret dollars she been looking for ten years is buried from the backhouse behind about ten feet down. She better let little Frederich do the digging and count it when he come up.

Pastor Luchnitz can have three hundret dollars if he kisses the book he won’t preach no more dumhead talk about politiks, He should a roof put on the meeting house with and the elders should the bills look at.

Mamma should the rest get, but I want it so mine brother Adolph should tell here what not she should do so no more slick irishers sell her vakom cleaners. They noise like hell and a broom don’t cost so much.

I want it that mine brother Adolph be my execter and I want it that the judge please make Adolph plenty bond put up and watch him like hell. Adolph is a good bisness man but only a dumkopf would trust him with a busted pfennig.

I want dam sure that schliemiel Oscar don’t nothing get, tell Adolph he can have a hundret dollars if he proves judge, Oscar don’t nothing get. That dam sure fix Oscar.

Signed: Herman Oberweiss”

Probating Mr. Oberweiss’ “will”, unfortunately, was difficult if not impossible because it has several problems.

To be a valid Will in Texas a Will must show testamentary intent. However, Mr. Oberweiss states in paragraph two of his Will that “if she lets Oscar live on it, I want I should have it back if she does.” This seems to indicate Mr. Oberweiss would still be alive.

Texas law also requires two witnesses subscribe their names to the Will in the testator’s presence. Mr. Oberweiss’ Will lacks the signature of any witnesses.

Another problem area for Mr. Oberweiss is his failure to adequately identify his heirs. Who are “Oscar”, “hilda”, “Mamma”, “Little Frederich” and “Adolph?” They appear to be family but we do not have their last names and so identifying them is difficult. For example, while Mr. Oberweiss is familiar with who “Mamma” is, we do not know from the Will. Several “Mammas” could appear claiming to be the one referred to in the Will.

Mr. Oberweiss would like “Mamma” to get at least six hundred dollars, that she has been trying to find for ten years, however, we do not have an adequate description of where the money really is. It is apparently buried behind what Mr. Oberweiss calls the “backhouse,” but where is the backhouse ?

Further, it is Mr. Oberweiss’ desire “helda” get the “North Sixtie Akers.” How do we know where the “North Sixtie Akers” is? Apparently it is where he was “homing” at the time he wrote the Will. But what does “homing” mean? Where he lived is a good guess, but we really do not know that is what he meant. What if Mr. Oberweiss was no longer “homing” the property he refers to when he died? What then ?

It is clear Mr. Oberweiss belonged to a congregation led by a “pastor.” While several denominations use this term, Mr. Oberweiss was obviously German and therefore would have probably been Lutheran or, possibly, Roman Catholic. But would a member of either denomination (or several others who use the term “pastor”) have referred to his church as a “meeting house?” Neither Lutherans nor Roman Catholics have “elders” at the congregational level. Presbyterians do, and, on occasion, a Presbyterian minister is addressed as “pastor.” But “meeting house?” The term is commonly associated with the Society of Friends, who have no “pastors.” Even more to the point, however – Mr. Oberweiss had a “pastor” and therefore could hardly have been Jewish. Yet don’t you wonder why a well to do farmer of German descent, living in East Texas, would use Yiddish words of execration is speaking of Oscar and Hilda’s husband?

I must confess Herman Oberweiss, nor his family, really exist. He was the creation of Will Sears. Mr. Sears was an attorney in Houston who created Herman Oberweiss’ Will for a Law School Banquet. Mr. Sears passed away in December of 1990. This was one of my father’s favorite articles, so thinking of him recently, I decided to publish it again.

While Herman Oberweiss does not exist, this Will does afford me the opportunity to caution you on the hazards of writing your own Will using a form from the Internet or Do-It-Yourself Will kit. I know things are a bit scary right now and you may think a homemade Will is your only option, so did Herman, but in the long run the goal of a Will is to make sure your last wishes are accomplished. Hiring an attorney to write your Will can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood. While a professionally prepared Will may not get electricity run to Aunt Pearl’s casket or make all of the deceased loved one’s family members happy, it will help insure that the true wishes of the decedent are carried out. THAT will damn sure fix Oscar.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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