Texas Probate Code
Chapter IV. Execution and Revocation of Wills

Statutes in Context
Chapter IV

The only way for a person to avoid having the probate estate pass to heirs under the law of intestate succession is to execute a valid will. A person has, however, no right to make a will. The United States Supreme Court confirmed that “[r]ights of succession to the property of a deceased . . . are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.” Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942).

Although not required to do so, the Texas Legislature has granted individuals the privilege of designating the recipients of their property upon death. Because the ability to execute a will is a privilege, a will typically has no effect unless the testator has precisely followed all the requirements. Texas, like most states, demands strict compliance with the statutorily mandated requirements. See In re Estate of Iversen, 150 S.W.3d 824 (Tex. App.—Fort Worth 2004, no pet.) (appellate court reversed trial court’s holding that a non-holographic will was properly executed even though it was unwitnessed; the affidavits of two individuals who saw the testator sign the will were not sufficient to satisfy the attestation requirement). A few states, however, have adopted a substantial compliance rule which grants the court a dispensing power to excuse a harmless error if there is clear and convincing evidence that the testator intended the document to be a will.

Many states have a savings statute which permits a will that does not meet the requirements of a valid will under local law to nonetheless be effective under certain circumstances. Texas does not have a savings statute.

There are four main requirements of a valid will: (1) legal capacity (§ 57), (2) testamentary capacity (§ 57 and case law thereunder), (3) testamentary intent (case law), and (4) formalities (attested wills under § 59 and holographic wills under § 60). Whenever you are asked to determine if a document purporting to be a will is valid, you must begin your analysis by ascertaining whether the testator satisfied each of these four requirements.

Statutes in Context
§ 57
Section 57 requires that the testator have both legal and testamentary capacity to execute a will.
The testator has legal capacity if the testator is either (1) age 18 or older, (2) currently or previously married, or (3) a current member of the armed forces of the United States.

A testator has testamentary capacity (“sound mind”) if the testator has (1) sufficient mental ability to understand the act in which the testator was engaged, (2) sufficient mental ability to understand the effect of making a will (that is, to dispose of property 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. Stephen v. Coleman, 533 S.W.2d 444 (Tex. Civ. App. — Fort Worth 1976, writ ref’d n.r.e.).

§ 57. Who May Execute a Will
Every person who has attained the age of eighteen years, or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind, shall have the right and power to make a last will and testament, under the rules and limitations prescribed by law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 801, ch. 334, § 1, eff. Aug. 28, 1967. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014.

Statutes in Context
§ 58
Section 58(b) authorizes a negative will, that is, a will which does not provide for the disposition of property but rather merely states that a named heir may not take by intestacy. Negative provisions were not enforced under the common law.

Section 58(c) provides that the contents of any specifically gifted item are not included in the gift unless the gift expressly includes the contents. Intangible property such as stock and titled personal property such as motor vehicles, are not considered contents. For example, if the will devises “my home to Son,” the contents of the real property will not pass to Son. However, if the will devises “my house and its contents to Son” and upon testator’s death the home contains furniture, stock certificates, and a car, Son would receive the furniture, but not the stock or car.

§ 58. Interests which May Pass Under a Will
(a) Every person competent to make a last will and testament may thereby devise and bequeath all the estate, right, title, and interest in property the person has at the time of the person’s death, subject to the limitations prescribed by law.
(b) A person who makes a last will and testament may:
(1) disinherit an heir; and
(2) direct the disposition of property or an interest passing under the will or by intestacy.
(c) A legacy of personal property does not include any contents of the property unless the will directs that the contents are included in the legacy. A devise of real property does not include any personal property located on or associated with the real property or any contents of personal property located on the real property unless the will directs that the personal property or contents are included in the devise.
(d) In this section:
(1) “Contents” means tangible personal property, other than titled personal property, found inside of or on a specifically bequeathed or devised item. The term includes clothing, pictures, furniture, coin collections, and other items of tangible personal property that do not require a formal transfer of title and that are located in another item of tangible personal property such as a cedar chest or other furniture.
(2) “Titled personal property” includes all tangible personal property represented by a certificate of title, certificate of ownership, written label, marking, or designation that signifies ownership by a person. The term includes a motor vehicle, motor home, motorboat, or other similar property that requires a formal transfer of title.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1991, 72nd Leg., ch. 895, § 6, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, § 6, eff. Sept. 1, 1993; Subsecs. (c), (d) amended by Acts 1995, 74th Leg., ch. 642, § 1, eff. Sept. 1, 1995. Repealed by Acts 2009, 81st Leg., ch. 680, § 10(a), eff. Jan. 1, 2014.