9362956394 sam@moakandmoak.com

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.


About a year or so ago, I wrote an article explaining that the best way to avoid a Will contest is to have a well written Will prepared by an attorney who can help you avoid potential conflicts. One aspect of the estate planning process that is very important, the Testator’s signature.A Will must be written in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution/signature of a Will involve documents that were prepared by individuals instead of attorneys. A person may type out a Will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of Wills, many of these documents are not considered to be valid because of mistakes in the form or because of improper execution.


A common allegation in a Will contest is that the document was forged. In the Matter of the Estate of Zerboni, 556 S.W.3d 482 (Tex.App.-El Paso 2018, no pet.), the wife probated her husband’s Will. Their daughter later intervened claiming that the signature on the Will was a forgery and thus she would be a beneficiary under a prior Will. The daughter brought forth evidence of a handwriting expert who examined dozens of the husband’s documents and who concluded that the signature on the Will was a forgery. However, the expert’s report or testimony was insufficient because none of the dozens of sample documents used were proved as admissible in court and thus, the expert’s opinion was not proof of forgery. The expert merely said he compared the sample signatures to the Will signature and concluded that the signature on the Will was a forgery. The expert failed to explain the perceived differences between signatures.


The moral to this example is that a Will contest alleging forgery needs to bring forth clear evidence from an expert who explains the reasons for the conclusion that the Will is forged. In another example, Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577 (Tex.App.-Fort Worth Nov.15, 2018, no pet.), the testator had been severely injured in an accident rendering him a quadriplegic and unable to speak or sign. However, he was able to communicate by responding to “yes” or “no” questions by blinking his eyes. Using this blinking system, the testator’s attorney drafted a Will and the testator directed a notary to sign the Will for him.


After the testator died, his estranged wife attempted to probate an earlier Will and the testator’s sister filed an application to probate the new Will. The trial court admitted the new Will and upon review by the appellate court, this was upheld. The Texas Estates Code §251.051(2)(B) allows a Will to be signed by a proxy in the testator’s presence and by his direction. The court found the blinking system was sufficient to establish the testator’s directions. Additionally, Government Code §406.0165 authorizes a notary to sign a document when directed to do so by a person unable to sign. After examining the evidence, the court determined the testator had testamentary capacity and was not subject to undue influence.


The moral here is that the Will of someone with limited physical ability has an enhanced chance of being contested, and thus, the drafting attorney should take extra precautions to solidify testamentary capacity, testamentary intent and compliance with the Will formalities of proper execution of the Will.


Unless you elect to be proactive, upon your death your loved ones could be entrenched in a long inheritance conflict lasting for years and costing thousands of dollars. However, with careful planning, you can avoid some and hopefully all of the inheritance conflicts among your loved ones. After all, the reason why you plan for your death is not for you, but for those whom you love the most.


A simple hearing over preliminary matters or discovery can take over 3 hours. Thus a family could spend a great deal of money on legal expenses with no resolution in sight. All this could be avoided if the testator hired an attorney to assist with writing the Will. There is no form, no internet document, and no water cooler advice that can replace the skill and knowledge of an experienced attorney in avoiding contest. While there are some issues you can’t avoid, you can draft and execute a Will in such a manner as to deter fights once you are gone. An ounce of prevention could save tens of thousands of dollars.

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. www.moakandmoak.com