In Re Estate of Iversen
2004 Tex. App. LEXIS 9629, 150 S.W.3d 824, 2004 WL 2416602 (2004)
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Rule of Law:
Under Texas law, the statutory requirement that a non-holographic will be attested by two credible witnesses who subscribe their names to the will is a strict requirement that cannot be satisfied through the doctrine of substantial compliance, such as by offering subsequent affidavits from individuals who observed the signing.
Facts:
- Lars Ingerman Iversen's first marriage to the mother of Jorgen Nylund, Linda Nylund Kiev, and Wendy Nylund ended in divorce in 1975.
- Iversen's second marriage to Anna E. Iversen Schoenwandt also ended in divorce in 1993.
- On April 2, 2000, Iversen created a one-page typed document purporting to be his will.
- The document bequeathed all of Iversen's possessions to Schoenwandt as his sole beneficiary and gave her full power of attorney.
- Iversen signed the document, and his signature was notarized, but it was not signed by any other attesting witnesses.
- Iversen remained unmarried after his second divorce and died on August 27, 2003.
Procedural Posture:
- Anna Schoenwandt filed an application to admit a document to probate as the will of Lars Iversen in the Denton County Probate Court.
- The children of Iversen's first marriage (Nylund) filed an Opposition to Probate, alleging the will was invalid for lacking two attesting witnesses.
- The probate court considered affidavits from two individuals who testified they saw Iversen sign the will.
- The probate court ruled that the affidavits constituted 'substantial compliance' with the statute, admitted the will to probate, and appointed Schoenwandt as independent administratrix.
- Nylund, as appellants, appealed the probate court's judgment to the Court of Appeals.
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Issue:
Does the doctrine of substantial compliance satisfy the requirement under section 59(a) of the Texas Probate Code that a non-holographic will be attested by two credible witnesses who subscribe their names to the document?
Opinions:
Majority - Justice Bob McCoy
No. The doctrine of substantial compliance does not satisfy the Texas Probate Code's mandatory requirement that a non-holographic will be signed by two attesting witnesses. The court reasoned that section 59(a) of the Texas Probate Code is unambiguous in its requirements: a will must be in writing, signed by the testator, and attested by two credible witnesses who subscribe their names to the document in the testator's presence. While a notary's signature can sometimes count as one witness, the document in this case still lacked the required second witness signature. The court further explained that the Code's reference to 'substantial compliance' in section 59(b) applies only to the form of an optional self-proving affidavit, not to the fundamental execution requirements of the will itself as laid out in section 59(a). Because the purported will was not properly attested, the affidavits from individuals who later claimed they saw Iversen sign it could not cure this fatal defect.
Analysis:
This decision reaffirms the principle of strict compliance with statutory will execution formalities in Texas. It clarifies that the substantial compliance doctrine, recognized for self-proving affidavits, cannot be extended to forgive a complete failure to meet the core requirement of two attesting witnesses' signatures on the will itself. The ruling underscores that a testator's clear intent cannot overcome a fatal defect in the statutory execution process. This precedent serves as a cautionary tale for estate planners and individuals, reinforcing the necessity of meticulously following statutory formalities to ensure a will's validity and prevent it from being invalidated on technical grounds.
