Attested by at Least Two Witnesses The

witnesses must be credible, that is, competent to testify in court under the applicable evidence rules. See Moos v. First State Bank, 60 S.W.2d 888 (Tex. Civ. App. 1933, writ dism’d w.o.j.). The witnesses only need to be above the age of 14. See Probate Code §§ 61-62 for what happens if the witness is also a beneficiary of the will.

The witnesses do not need to know they are witnessing a will. In other words, publication is not required in Texas. See Davis v. Davis, 45 S.W.2d 240 (Tex. Civ. App. — Beaumont 1931, no writ). The witnesses only need to have the intent to give validity to the document as an act of the testator.

The witnesses must attest using “their names” in “their own handwriting.” Thus, attestation by mark or by proxy is not allowed.

Although § 59(a) states that the witnesses must “subscribe” (that is, attest at the end of the will), the courts have not read this requirement strictly. See Fowler v. Stagner, 55 Tex. 393 (1881).

The witnesses must attest “in the presence of the testator.” The courts have interpreted this to mean a conscious presence, that is, “the attestation must occur where 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.” Nichols v. Rowan, 442 S.W.2d 21 (Tex. Civ. App. — San Antonio 1967, writ ref’d n.r.e.). Note that Texas law, unlike many states, does not require (1) the witnesses to attest in each other’s presence 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 this regard. Instead, they have followed the continuous transaction 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.”

James v. Haupt, 573 S.W.2d 285, 289 (Tex. Civ.

App. — Tyler 1978, writ ref’d n.r.e.) and In re

Estate of Pruitt, 249 S.W.3d 654 (Tex. App.—Fort

Worth 2008, no pet.).

Self-Proving Affidavit. Section 59(b)

provides the testator with the option making the will self-proved by either (1) adding an affidavit as a separate document under § 59(a) or (2) including the affidavit within the text of the will under § 59(a-

1). Virtually all wills contain this affidavit because it substitutes for the in-court testimony of the witnesses when the will is probated thereby saving considerable time and expense.

In the past, problems arose if the testator and/or the witnesses signed the affidavit but not the will. The courts consistently held that the will and the affidavit were separate documents and thus a signature on the self-proving affidavit could not substitute for a missing signature on the will. See Boren v. Boren, 402 S.W.2d 728 (Tex. 1966). The 1991 Texas Legislature amended § 59(b) to alleviate this harsh result. Now, a signature on the affidavit may be used to prove the will but the will is then no longer considered self-proved and the testimony of the witnesses will be needed to probate the will.

The 2011 Legislature went a step farther by allowing the testator to include the self-proving language within the body of the will so that only one set of signatures is required. See § 59(a-1).

§ 59. Requisites of a Will

(a) Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator. Such a will or testament may, at the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses, made before an officer authorized to administer oaths. Provided that nothing shall require an affidavit or certificate of any testator or testatrix as a prerequisite to self-proof of a will or testament other than the certificate set out below. The affidavits shall be evidenced by a certificate, with official seal affixed, of such officer attached or annexed to such will or testament in form and contents substantially as follows:

THE STATE OF TEXAS COUNTY OF _____________

Before me, the undersigned authority, on this day personally appeared ___________, ______________, and _____________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _____________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath

stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age. Testator

Witness Witness

Subscribed and sworn to before me by the said________, testator, and by the said ______________ and _______________, witnesses, this __________ day of ____________ A.D. ______________.

(SEAL)

(Signed) ___________________________________ (Official Capacity of Officer)

(a-1) As an alternative to the self-proving of a will by the affidavits of the testator and the attesting witnesses under Subsection (a) of this section, a will may be simultaneously executed, attested, and made self-proved before an officer authorized to administer oaths, and the testimony of the witnesses in the probate of the will may be made unnecessary, with the inclusion in the will of the following in form and contents substantially as follows:

I, ______________________, as testator, after being duly sworn, declare to the undersigned witnesses and to the undersigned authority that this instrument is my will, that I have willingly made and executed it in the presence of the undersigned witnesses, all of whom were present at the same time, as my free act and deed, and that I have requested each of the undersigned witnesses to sign this will in my presence and in the presence of each other. I now sign this will in the presence of the attesting witnesses and the undersigned authority on this ______ day of __________, 20________________.

Testator

The undersigned, __________ and __________, each being above fourteen years of age, after being duly sworn, declare to the testator and to the undersigned authority that the testator declared to us that this instrument is the testator’s will and that the testator requested us to act as witnesses to the testator’s will and signature. The testator then signed this will in our presence, all of us being present at the same time. The testator is eighteen years of age or over (or being under such age, is or has been lawfully married, or is a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service), and we believe

the testator to be of sound mind. We now sign our names as attesting witnesses in the presence of the testator, each other, and the undersigned authority on this __________ day of __________, 20______________. ___________________________ Witness ___________________________ Witness

Subscribed and sworn to before me by the said _________, testator, and by the said _____________ and ______________, witnesses, this _____ day of __________, 20____________.

(SEAL)

(Signed) ___________________________ (Official Capacity of Officer)

(b) An affidavit in form and content substantially as provided by Subsection (a) of this section is a “self- proving affidavit.” A will with a self-proving affidavit subscribed and sworn to by the testator and witnesses attached or annexed to the will, or a will simultaneously executed, attested, and made self-proved as provided by Subsection (a-1) of this section, is a “self-proved will.” Substantial compliance with the form provided by Subsection (a) or (a-1) of this section shall suffice to cause the will to be self-proved. For this purpose, an affidavit that is subscribed and acknowledged by the testator and subscribed and sworn to by the witnesses would suffice as being in substantial compliance. A signature on a self-proving affidavit as provided by Subsection (a) of this section is considered a signature to the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that case, the will may not be considered a self-proved will.

(c) A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. In particular and without limiting the generality of the foregoing, a self-proved will may be contested, or revoked or amended by a codicil in exactly the same fashion as a will not self-proved.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1961, 57th Leg., p. 936, ch. 412, § 1, eff. June 17, 1961; Acts 1969, 61st Leg., p. 1922, ch. 641, § 5, eff. June 12, 1969; Acts 1971, 62nd Leg., p. 974, ch. 173, § 5, eff. Jan. 1, 1972. Amended by Acts 1991, 72nd Leg., ch. 895, § 7, eff. Sept. 1, 1991. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014. Amended by Acts 2011, 82nd Leg., ch. 1338, § 1.12, eff. Sept. 1, 2011. Repealed by Acts 2011, 82nd Leg., ch. 1338, § 2.54, eff. Sept. 1, 2014.

Statutes in Context § 59A

A contractual will refers to a will that is either (a) executed in whole or in part as the consideration for a contract, or (b) not revoked as the consideration for a contract. The contract must

meet all the requirements for a valid contract under applicable Texas law.

To ensure that only the wills of testators who actually intend to be bound are deemed contractual, § 59A requires that (1) the will state that a contract exists along with the material terms of the contract or (2) the contract be proved by a binding and enforceable written agreement such as a premarital agreement, divorce property settlement, or buy-sell agreement. The statute further provides that joint wills (a single testamentary instrument that contains the wills of two or more persons, such as a husband and wife) and reciprocal wills (separate wills which contain parallel dispositive provisions) are not presumably contractual. Nonetheless, to avoid the unintended creation of a contractual will, it may be prudent to include an anticontract provision.

If the testator executed the will prior to September 1, 1979, the contractual nature of the will may be established by extrinsic evidence.

§ 59A. Contracts Concerning Succession

(a) A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into on or after September 1, 1979, can be established only by:

(1) provisions of a written agreement that is binding and enforceable; or

(2) provisions of a will stating that a contract does exist and stating the material provisions of the contract.

(b) The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the existence of a contract.

Added by Acts 1979, 66th Leg., p. 1746, ch. 713, § 10, eff. Aug. 27, 1979. Amended by Acts 2003, 78th Leg., ch. 1060, § 9, eff. Sept. 1, 2003. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014.

Statutes in Context § 60

A holographic will is prepared in the testator’s own handwriting. Section 60 exempts holographic wills from the attestation requirement. This special treatment is justified by the aura of validity that surrounds a handwritten document because of the reduced chance of forgery and enhanced assurance of authenticity resulting from the large sample of the testator’s writing.

The will must be “wholly” in the testator’s own handwriting. Texas courts have adopted the surplusage approach which means that nonholographic material will not injure the holographic character of the will as long as the nonholographic material is not necessary to complete the instrument and does not affect its

meaning. See Maul v. Williams, 39 S.W.2d 1107 (Tex. Comm’n App. 1934, holding approved).

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

§ 60. Exception Pertaining to Holographic Wills

Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with. Such a will may be made self-proved at any time during the testator’s lifetime by the attachment or annexation thereto of an affidavit by the testator to the effect that the instrument is his last will; that he was at least eighteen years of age when he executed it (or, if under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service); that he was of sound mind; and that he has not revoked such instrument.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, § 6, eff. June 12, 1969. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014.

Statutes in Context § 61

A testamentary gift to a beneficiary who is also a witness to the will is presumed void under the Texas purging statute, § 61. The testimony of an interested witness about the attestation is suspect because the witness has a motive to lie. There are three exceptions to this rule. The first exception applies if the witness would be an heir if the testator had actually died intestate in which case the witness may receive the gift provided it does not exceed the share of the testator’s estate the witness could take under intestate succession. With regard to the smaller of the gift under the will or the intestate share, the witness has no motive to lie because the witness will receive that amount regardless of the validity of the will. The second exception is if the will can “be otherwise established” such as by the testimony of another witness. The third exception is detailed in § 62.

§ 61. Bequest to Witness

Should any person be a subscribing witness to a will, and also be a legatee or devisee therein, if the will cannot be otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such bequest had been made. But, if in such case the witness would have been entitled to a share of the estate of the testator had there been no will, he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014.

Statutes in Context § 62

Section 62 provides the third exception to the interested witness rule set forth in § 61. If the testimony of the witness-beneficiary is corroborated by a disinterested and credible person, the witness-beneficiary may retain the testamentary gift. Note that this person does not have to be an attesting witness to the will. For example, this person could be the attorney who supervised the will execution ceremony.

§ 62. Corroboration of Testimony of Interested Witness

In the situation covered by the preceding Section, the bequest to the subscribing witness shall not be void if his testimony proving the will is corroborated by one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, and such subscribing witness shall not be regarded as an incompetent or non-credible witness under Section 59 of this Code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014.

Statutes in Context § 63

Section 63 provides two methods for revoking a will.