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Volume XII, Number 177

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Court Holds That Initialing A Will Is Sufficient To Meet The Execution Requirement

In Jones v. Jones, the decedent’s wife filed an application for probate of an attested will for her husband, and the decedent’s son from a previous marriage filed a petition contesting the will. No. 01-20-00073-CV, 2022 Tex. App. LEXIS 2019 (Tex. App.—Houston [1st Dist.] March 29, 2022, no pet. history). The trial court denied the application to probate the will, and the wife appealed.

The court of appeals noted that “Except as otherwise provided by law,” a will must be: (1) in writing; (2) signed by the testator in person; and (3) “attested by two or more credible witnesses who are least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.” Id. (citing Tex. Est. Code § 251.051). The court noted that the decedent did not sign the will, had a typed name in the signature portion, but that it was initialed by the decedent. The court stated:

“Texas courts have been lenient regarding the location and form of a ‘signature.'” A signature may be informal, and its location of secondary importance, if the maker intended his or her name or mark to constitute a signature expressing approval of the instrument as the maker’s will. The facts and circumstances surrounding the instrument’s execution may be considered in determining whether the maker intended a testamentary disposition of his property. Further, Texas courts have also explicitly held that a signature by initials is sufficient to execute a will, whether holographic or attested, if it is testamentary in character. “The key inquiry, however, remains whether the testator intended the mark to constitute an expression of his testamentary intent.”

Id. (internal citations omitted). The court concluded: “Considering this case law, we conclude that Wendell’s initials on pages one through six of his will are sufficient to satisfy Section 251.051’s signature requirement, just as any other mark made by him would be, so long as he ‘intended the mark to constitute an expression of his testamentary intent.’” Id.

The court also concluded that there was evidence of testamentary intent: “We acknowledge that it is undisputed that the 1995 will does not contain Wendell’s handwritten signature on the signature page. But as we have concluded, the presence of Wendell’s initials constitutes his signature on the 1995 will, so long as he made them with the requisite testamentary intent. Therefore, the lack of a handwritten signature on the last page of the will does not impact our analysis of his intent.” Id. The court finally held that the will was property attested: “[B]y testifying that that they each saw Wendell initial the will, Onvani and Woolsey attested to Wendell’s “signature” and that Wendell “in fact executed the document that they are signing” as witnesses. We conclude that there is legally insufficient evidence to support the trial court’s finding that the purported will “was never signed by the Decedent” and “the purported witnesses could not have seen him sign that which they purportedly attest to.” Id.

© 2022 Winstead PC.National Law Review, Volume XII, Number 143
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About this Author

David Johnson Financial Institution lLtigation Winstead Law Firm Fort Worth Texas
Managing Shareholder - Fort Worth

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

817.420.8223
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