Wich v. Fleming
652 S. W.2d 353, 26 Tex. Sup. Ct. J. 312, 1983 Tex. LEXIS 291 (1983)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the Texas Probate Code, a will is not validly executed if the attesting witnesses sign only the self-proving affidavit attached to the will, rather than the will itself, because the affidavit and the will are legally distinct documents with different functions and intents.
Facts:
- On December 22, 1979, Dr. Mabel Giddings Wilkin executed her will at a bank in Brenham, Texas.
- Dr. Wilkin signed her name on the last page of the will in the presence of her attorney and a bank employee, who were to act as witnesses.
- The self-proving affidavit was located on the same page as, but immediately following, Dr. Wilkin's signature.
- The two witnesses did not sign the will's attestation clause, but instead signed their names only at the conclusion of the self-proving affidavit.
- Both Dr. Wilkin and the two witnesses believed they were executing the will in a legally valid manner.
Procedural Posture:
- The executrix of Dr. Wilkin's estate, Fleming, offered the purported will for probate in the trial court.
- The trial court granted summary judgment against Fleming, denying probate of the will.
- Fleming, as appellant, appealed to the court of appeals.
- The court of appeals reversed the trial court's judgment and remanded the cause, holding the will was valid.
- The party opposing the will, Wieh, as petitioner, sought and was granted review by the Supreme Court of Texas.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a will satisfy the statutory attestation requirement of the Texas Probate Code when the witnesses sign only the self-proving affidavit attached to the will, and not the will itself?
Opinions:
Majority - Campbell, J.
No. A will does not satisfy the statutory attestation requirement when witnesses sign only the self-proving affidavit because the will and the affidavit are legally distinct instruments. The court reaffirmed its precedent from Boren v. Boren, holding that proper attestation is a mandatory prerequisite for a valid will. The purpose of attestation is for a witness to express a present intent to witness the will's execution. In contrast, the purpose of a self-proving affidavit is to swear that the will has already been validly witnessed and executed. Because the witnesses in this case had not previously signed the will, the statements in the affidavit were false, and neither the intent to presently attest nor the intent to affirm a prior attestation was accomplished. The court noted that even clear evidence of the testator's intent cannot overcome the mandatory provisions of the Probate Code, and since the legislature has not amended the statute in the years since Boren, the court must presume the legislature approves of this strict interpretation.
Dissenting - Robertson, J.
Yes. A will should be considered validly attested when witnesses sign the self-proving affidavit with the intent to witness the will. The majority's adherence to the 'hypertechnical' rule from Boren v. Boren leads to harsh results, creates a trap for testators, and elevates form over substance, frustrating the testator's clear intent. Historically, Texas courts held that the location of a witness's signature was immaterial so long as the intent to attest was present. The self-proving affidavit serves the same functional purpose as an attestation clause, and the Probate Code does not specify a required location for the signatures. The dissent argues that the court should overrule Boren and join other states that have rejected its rigid, formalistic approach.
Concurring - Robertson, J.
While joining the dissent on the substantive issue of the will's validity, this opinion concurs with the majority's action on the Motion for Rehearing. The author agrees with the ultimate disposition of the case but maintains his belief expressed in the dissent that the underlying legal precedent of Boren v. Boren is incorrect and should be overturned.
Analysis:
This case solidifies the Texas Supreme Court's commitment to a strict, formalistic interpretation of will execution requirements, as established in Boren v. Boren. The decision confirms that substantial compliance or clear evidence of testamentary intent is insufficient to cure a defect in the statutory attestation procedure. This ruling serves as a stark warning to estate planning practitioners about the critical importance of adhering precisely to the formalities of the Probate Code, as even minor procedural errors can lead to the invalidation of an entire testamentary plan. The court's reasoning places the onus on the legislature, not the judiciary, to amend the statute if a more lenient standard is desired.
