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When writing a will use a professional..

Posted by attorney Shari Goldsberry

Though Texas law allows a person to make a holographic will—a will written entirely in the testator’s own handwriting, see Tex. Prob. Code § 60—a will drafted by a layperson may not speak with the necessary clarity and authority that would permit a court to honor the testator’s wishes if an unhappy friend or family member of the deceased challenges the will in court. Even though holographic wills are to be liberally construed to ensure the testator’s intent is given effect, see Trim v. Daniels, 862 S.W.2d 8, 10 (Tex. App—Houston [1st Dist.] 1992, writ denied), and in such a way as to try to avoid “[a] construction which would render the decedent intestate as to any part of his estate," see id., trial courts may find language used by the layman testator to be too ambiguous or otherwise faulty, thus creating difficulties for the intended beneficiaries.

Recently in In re Estate of Abshire, the intended beneficiaries faced two challenges in trying to honor the wishes of the deceased as stated in her holographic will. No. 02-10-00060-CV (Tex. App.—Fort Worth Aug. 18, 2011) (mem. op.) There, the testator Ms. Abshire wrote a holographic will naming an executor and an alternate executor and a holographic codicil a few days later attempting to tell her executor that she wanted her “funds" distributed to three named beneficiaries upon her death. Id. Ms. Abshire’s heirs at law challenged the codicil, arguing that the language was precatory—expressing a request—rather than mandatory and that Ms. Abshire’s use of the word “funds" in the codicil did not include real property. Id. Thus, the heirs at law argued, the codicil did not distribute the Ms. Abshire’s estate. Id. The trial court agreed with Ms. Abshire’s heirs at law and determined that Ms. Abshire died intestate in regards to her property. Id.

To contain a proper disposition of property, a will or codicil must use mandatory language that gives the executor the authority to dispose to the testator’s property only in the way stated. A document that is precatory lacks testamentary character and cannot be enforced. See generally Thomasson v. Kirk, 859 S.W.2d 493 (Tex. App.—Houston [14th Dist.] 1993, writ denied) and Ricketts v. Alliance Life Ins. Co., 135 S.W.2d 725, 732 (Tex. Civ. App.—Amarillo 1939, writ dism’d judgm’t cor.) (accepting the rule that generally “[p]recatory words in a will, addressed by a testator to a legatee whom he has the power to command, create no trust in favor of the parties recommended.") However, in determining whether or not a testator uses precatory language, the entirety of the document is examined for context. See In re Estate of Florence, 307 S.W.3d 887, 893 (Tex. App.—Fort Worth 2010, no pet.) (stating “all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testator's intent.") See also In re Estate of Abshire, No. 02-10-00060-CV. The court recognized that testators may use softer words—such as “want," “desire," or “wish"—but that these words may be interpreted as mandatory if “it appears from the context or from the entire document that they are the expression of the testator’s intention in disposing of his property." Id.

In the case of Ms. Abshire’s will and codicil, the Second Court of Appeals read the particular language used—“just as a rough guide, I would like"—in the context of the entire document and determined her language expressed an intent to dispose of her property in a particular way. Id. Such context included the title of the document—“Holographic Will of Marjorie B. Abshire"—and her repeated use of the phrase “I would like." Id. “Read in context rather than as an isolated phrase, ‘just as a rough guide, I would like’ does not, in our view, leave the distribution of Abshire’s funds to the discretion of others." Id.

Ms. Abshire’s heirs at law also challenged her use of the term “funds" in her codicil, arguing that the term did not include her real property. Id. Once again, the trial court agreed with her heirs at law. Id. The Second Court of Appeals reversed the trial court’s decision, noting “[t]he word ‘funds’ in its broad meaning may include property of any kind" and “[t]he expression, ‘funds of an estate,’ used in a will, may mean any property of a testator." Id. (quoting Goggans v. Simmons, 319 S.W.2d 442, 445 (Tex. Civ. App.—Fort Worth 1958, writ ref’d n.r.e.).

Though in this case Ms. Abshire’s wishes as expressed in her will and codicil were honored, it took the intended beneficiaries several years and plenty of money in attorney fees to reach Ms. Abshire’s stated goals. Id. Texas law permitting holographic wills and policies of liberal construction of such wills may be no match for relatives who feel slighted by a testator’s wishes. Thus the need for an attorney skilled at drafting testamentary documents to try to prevent inconveniences to intended beneficiaries at best and a downright refusal of a court to honor the will at worst.

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