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Testators with communication Challenges

by

Gerry W. Beyer

Revised February 21, 2006

    Your client may have difficulty with communication, that is, the client may be unable to see, hear, write, or understand English.  To effectively prepare a will for these clients, the estate planner must initially ascertain whether the client has a communication challenge and then take affirmative steps to make certain the challenge does not negatively impact the validity of the will.  Extra attention must be given to make certain the requirements of a valid will are satisfied and that individuals displeased with the will do not use the communication challenge as a foundation for claims of undue influence or fraud.  Even without other evidence, courts may subject the will of a communicationally challenged client to higher scrutiny.  For example, in a recent Arizona case, the court determined that the testator’s visual impairment was a key factor in determining that the contestants had probable cause for bringing a will contest thus precluding forfeiture under an in terrorem provision.  In Estate of Shumway, 2000 WL 1310578 (Ariz. 2000).

    This article reviews a variety of communication challenges and recommends techniques to reduce the likelihood of these challenges playing a part in setting aside the testator’s will.

I.  Visually Impaired Testator

    There are approximately 1,100,000 legally blind individuals in the United States.  See University of Washington Department of Ophthalmology, Statistics on Blindness and Blinding Diseases in the United States, at http://depts.washington.edu/ophthweb/statistics.html (last modified Jan. 1, 2000).  In addition, about 11,400,000 people have non-correctable, severe vision problems.  See id.  Accordingly, it is highly likely that you will encounter a visually impaired client.

    A.  Testamentary Capacity

        Under § 57 of the Texas Probate Code, a person must be of “sound mind” to execute a valid will.  The courts have interpreted this term as meaning that a testator must possess testamentary capacity; that is, at the time of the execution of the will, the testator must have sufficient mental ability to do five things:

1. Understand the business in which the testator was engaged (i.e., the testator knows what the testator is doing);

2. Understand the effect of the act in making the will (i.e., the testator knows the testator is preparing a document that disposes of property upon the testator’s death);

3. Understand the general nature and extent of the testator’s property;

4. Know the testator’s next of kin and natural objects of the bounty as well as their claims upon the testator; and

5. 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 be able to form a reasonable judgment as to them.

See Stephen v. Coleman, 533 S.W.2d 444 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.).

    “It is well settled at the common law and under modern statutes that testamentary capacity, depending as it does, on soundness of mind and memory, is not effected by the fact that the testator is blind.”  Annotation, Will of Blind Person, 9 A.L.R. 1416, 1416 (1920).  As long as a visually-impaired person otherwise has testamentary capacity, the fact that a person cannot see will not prevent the person from being able to execute a valid will.  See Goldsmith v. Gates, 88 So. 861 (Ala. 1921).

    B.  Knowledge of Contents

        Difficulties arise in demonstrating that the visually impaired testator knew the contents of the document which he or she executed.  The blindness of a testator seems to rebut the presumption, otherwise arising from the due execution of a will, that the testator was aware of its contents.  See Annotation, Will of Blind Person, 9 A.L.R. 1416, 1416 (1920) and dicta to a similar effect in Warren v. Ellis, 137 S.W. 1182 (Tex. Civ. App.—Galveston 1911, no writ).  Accordingly, the proponent of the will has the burden of demonstrating that the blind testator knew the will’s contents.

    When probate matters were governed by the ecclesiastical courts, it was necessary to show that the will was read to the blind testator.  See Thomas Atkinson, Handbook of the Law of Wills § 53 (1953).  It is now, however, “well settled that the will of a blind person is valid though it is not read to him at the time of its execution.  It is sufficient if he, in any manner, is aware if its contents.”  Annotation, Will of Blind Person, 9 A.L.R. 1416, 1417 (1920).  Thus, the estate planner must take steps before or during the execution of the will to ensure that it can be demonstrated that the blind person was aware of the will’s contents.

    Of course, reading the will to the visually impaired testator in front of witnesses as they carefully track the written will would be a good technique, provided the testator is agreeable to revealing the contents of the will.  If the witnesses were members or employees of the attorney’s firm, they would be bound by the confidentiality rules of the Disciplinary Rules of Professional Conduct.  Although it may be a good idea to use the same witnesses who attest to the will, there is no requirement to do so because the communication of contents to a blind testator is not part of the execution process.

    Voice recognition computer software may provide another alternative.  The visually impaired person could speak and edit his or her own will using the appropriate software.  In a related fashion, an attorney-prepared will could be scanned into the computer and then read back to the visually impaired client.

    C.  Attestation in Presence of the Testator

        Texas Probate Code § 59(a) requires that all non-holographic written wills be attested to by at least two credible witnesses above the age of fourteen in the presence of the testator.  The Texas courts have held that this means a “conscious presence.”  That is, “the attestation must occur where testator, unless blind, is able to see it from his actual position at the time, or at most, from such position as slightly altered, where he has the power readily to make the alteration without assistance.”  Nichols v. Rowan, 422 S.W.2d 21, 24 (Tex. Civ. App.—San Antonio 1967, writ ref’d n.r.e.) (emphasis added).

    No Texas case directly dealing with blind testators and the presence issue was located.  Some courts which have ruled on this point “adhere to the general rationale, and insist that the parties should have been so situated that the testator could have seen if he had vision.”  Thomas Atkinson, Handbook on the Law of Wills § 72, at 344 (1953).  Other courts hold that it is “sufficient if the witnesses sign in such proximity to the testator that he can discern their presence by the use of his remaining senses.”  Annotation, Will of Blind Person, 9 A.L.R. 1416, 1418 (1920).  Thus, if the testator can hear or touch the other witnesses, the attestation would be deemed done in the testator’s presence.  “Obviously a court should not be too strict in this regard, for a blind testator can seldom be certain from his other senses that the witnesses he has chosen are signing his will.”  Thomas Atkinson, Handbook of the Law of Wills § 72, at 344 (1953).  Courts strive to avoid the fraud that could easily be perpetrated upon the blind testator but, on the other hand, are flexible enough so that a blind person is not precluded from executing an effective will.

    D.  Signature of Testator

        The visually impaired testator should sign the will with the testator’s name.  The attorney should physically place the testator’s hand at the appropriate place on the will and have the testator sign.  Consider having the testator make practice signatures so that the testator is aware of the amount of space available for the signature.  The testator may appreciate a signature guide, that is, a cardboard, metal, or plastic card with a cut out area in the size of a signature, which you may place over the appropriate spot on the will.  You can make a guide yourself or purchase one for under $2.00 from businesses selling products for visually impaired individuals such as LS & S Group (http://www.lssgroup.com; 800-468-4789).

    If the testator is unable to sign his or her name, consider the options discussed in Section III of this article.

    E.  Suggestions

    The estate planner may consider taking the following precautions to increase the chances of the visually impaired client’s testamentary desires being carried out upon death:

§ Read the will to the blind testator in front of witnesses as described in subsection B, above.

§ The blind testator could execute a Braille will.  No Texas case was located dealing with Braille wills but it seems that statutory law permits such wills.  A will must be “in writing.”  Prob. Code § 59.  The Code Construction Act defines the term “written” as “any representation of words, letters, symbols, or figures.”  Gov’t Code § 311.005(11).  Braille certainly would be included within this definition.  A will also must be “signed.”  The Code Construction Act defines “signed” to include “any symbol executed or adopted by a person with present intention to authenticate a writing.”  Gov’t Code § 311.005(6).  It thus appears that a Braille signature might be allowed.  There is authority in other states, however, that Braille signatures would be ineffective.  See Succession of Harvey, 573 So. 2d 1304, 1307 (La. Ct. App. 1991).  Even if a normal print will were executed, a conformed unexecuted Braille copy might be useful.

§ Videotape the execution ceremony.  See Gerry W. Beyer, Videotaping the Will Execution Ceremony — Preventing Frustration of Testator's Final Wishes, 15 St. Mary's L.J. 1 (1983).

    E.  Sample Clauses

            1.  Testimonium

    I, [testator], hereby sign my name to this my last will consisting of this and the [number] preceding pages (each of which I am initialing and/or signing for the purpose of identification), all in the presence of the two persons who have at my request and in my presence acted as witnesses on this the [day] day of [month], [year], at [city], [state].  Being unable to read this will because I am blind [visually impaired], I had this will read to me by [name of testator’s attorney or computer software product] in front of the witnesses.  I am therefore fully aware of the will’s contents.

 _________________
(Testator)

            2.  Attestation

II.  Hearing or Speaking Impaired Testator

    More than 28 million Americans have some degree of hearing impairment.  In addition, over 30% of the people over age 65 having hearing difficulties.  Better Hearing Institute, Facts About Hearing Disorders, at http://www.betterhearing.org/demograp.htm (1999).  Accordingly, the odds are very high that you will encounter hearing impaired clients.  Although hearing impairment alone does not impact a person’s ability to execute a valid will, the fact does increase the likelihood of a contest based on undue influence or lack of testamentary capacity.  See Priem v. Adams, 352 S.W.2d 324 (Tex. Civ. App.—Austin 1921, writ ref’d n.r.e.) (deaf testator had testamentary capacity and was not unduly influenced); Pariton v. Shipley, 195 P. 125 (Okla. 1921) (deaf testator deemed to lack testamentary capacity).

    You may communicate with a client who cannot speak and/or hear through written means or via sign language.  The client may also be skilled in lip-reading.  If the client communicates via sign language and you use an interpreter, you must be aware of several issues.  You must endeavor to find an interpreter who will respect the client’s confidentiality as well as someone who will accurately translate.  Be cautious in using family members of the client to translate.  These individuals may have an incentive to translate inaccurately.  See Tuzzio v. Appeal From Probate, 1995 WL 643145 (Conn. Super. Ct. 1995) (translator, the testator’s brother, deemed to have exerted undue influence over the testator).  Although somewhat tedious, you may decide to conduct all communications in writing or via a TDD-TYY device to assure privacy and accuracy.

    If the client is deaf, you will detect the situation immediately and can take appropriate steps to assure reliable communication as discussed above.  A more significant problem, however, arises if the client is not totally deaf but instead has a hearing difficulty which is not readily apparent.  As you proceed through the interview process, be alert for comments and answers to questions that are slightly inappropriate or contradictory which may reflect a hearing impairment.

III.  Client Physically Unable to Sign

    Your client may be unable to sign documents because of an injury, a muscular or neurological disease, or lack of writing skills.  How may such a client execute a will?

    A.  Signature by Mark

       A will must be “signed.”  Prob. Code § 59(a).  The Code Construction Act provides that “signed” includes “any symbol executed or adopted by a person with present intention to authenticate a writing.”  Gov’t Code § 311.005(6).  Accordingly, the testator may sign with an “X” or other mark. 

    B.  Proxy Signature Under Probate Code

        A will may be signed by a third party on behalf of the testator.  Prob. Code § 59(a).  A proxy signature must meet two requirements to be valid.  First, the proxy must place the testator’s signature on the will at the testator’s direction.  Second, the proxy must sign in the testator’s presence.  “[T]he best form of signature by proxy is to write the testator’s name ‘by _______ (the proxy),’ and perhaps following this with a statement that it was written by testator’s direction and in his presence.”  Thomas E. Atkinson, Law of Wills § 64 (1953).  For a detailed review of Texas cases discussing signatures by proxy, see 9 Aloysius A. Leopold & Gerry W. Beyer, Texas Law of Wills § 18.6 (Texas Practice 1992 & Supp. 2000).

    C.  Notary Signature Under Government Code

        In 1997, the legislature enacted Government Code § 406.0165 to provide a new method for individuals who are physically unable to sign or make a mark to execute a will or other document.  This method is in addition to the proxy signatures methods already in existence such as Probate Code § 59(a).  The requirements for this proxy technique include the following:

1. The testator must be physically (not educationally) unable to sign or make a mark on a document.

2. The document must be presented for notarization.

3. The testator must direct the notary to sign the testator’s name.

4. The notary must sign the testator’s name in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document.

5. The notary must require identification from the witness just as if the witness were a person making an acknowledgment.

6. Beneath the notary’s signature of the testator’s name, the notary must write the following sentence (or one substantially similar): “Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code.”

    D.  Guided Signature

        An assisted signature is one where the testator’s hand is guided by a third party’s hand in drawing the name.  The court is likely to treat this as a proxy signature situation.  Thus, proof would be needed that guiding was “done in pursuance of the previously expressed direction of the testator.”  Muhlbauer v. Muhlbauer, 686 S.W.2d 366, 377 (Tex. Civ. App.—Fort Worth 1985, no writ).  In this case, the witnesses to the will were unable to recall the circumstances as to why the testator’s wife had guided the testator’s hand.  Because the wife, the primary beneficiary, provided the only testimony as to the guided signature, the court upheld the trial judge’s determination that there was insufficient evidence of the testator’s intent.  The court then held that the will was not signed at the testator’s direction and was thus invalid.

IV.  The Illiterate Testator

    A new client comes to your office and hires you to prepare a will to dispose of the person’s sizable estate.  During your meeting, the client seems to be of average intelligence and appears in all respects to be “normal.”  However, something unusual happens at one of your conferences.  You hand the client a draft of the will and after flipping the pages, the client says, “It looks all right to me; I trust you.”  You become insistent and explain that you want the client to read the will carefully to make certain it correctly disposes of the estate.  At this point your client, obviously quite embarrassed, admits to you that the client cannot read or write except to make a signature.

    Although this situation is less likely to occur today in our highly educated society than it was a hundred years ago, it is probably more common than we care to admit.  The Coalition for Literacy states that more than 40 million Americans over the age of sixteen have significant literacy needs.  National Institute for Literacy, Fast Facts on Literacy, at http://www.nifl.gov/newworld/FASTFACT.HTM (visited Oct. 27, 2000).  This means that, on average and assuming your client mix is representative of the general population, more than one out of five of your adult clients will be functionally illiterate.

    A.  Testamentary Capacity

        The courts in the United States have generally not exacted any educational standard on testators.  See Thomas Atkinson, Handbook of the Law of Wills § 53 (1953).  In Oliver v. Williams, 381 S.W.2d 703 (Tex. Civ. App.—Corpus Christi 1964, no writ), the court was confronted with a situation where the testator’s testamentary capacity was in dispute because, among other things, he was unable to read or write although he could sign his own name.  The court stated that “[t]he test is not whether the person who has made testamentary disposition of his property possesses a high order of intelligence * * *.  The lack of education or proof of illiteracy has little, if any, bearing on the mental capacity to make a will.”  Id. at 709.  “Laymen as a rule do not understand the technical and legal language of deeds and wills, whether they are literate or illiterate.”  Naihaus v. Feigon, 244 S.W.2d 325, 329 (Tex. Civ. App.—Galveston 1951, writ ref’d n.r.e.).

    Thus, a testator’s illiteracy is irrelevant as far as testamentary capacity is concerned, as long as the usual elements can be demonstrated.  (Note that in some states, such as Louisiana, the ability to read may affect the capacity to execute some types of wills).

    B.  Knowledge of Contents

        A testator must intend the very instrument executed to be the testator’s last will and testament.  See Price v. Huntsman, 430 S.W.2d 831 (Tex. Civ. App.—Waco 1968, writ ref’d n.r.e.).  This indicates that a testator must have knowledge of the contents of the document and intend those contents to be his or her will.  Testamentary intent is lacking if the testator has no knowledge of the actual text of the will.  See generally 10 Aloysius A. Leopold & Gerry W. Beyer, Texas Law of Wills § 51.34 (Texas Practice 1992 & Supp. 2000).  To justify the admission of a will of an illiterate person to probate, many jurisdictions require the proponent of the will to show that the testator had knowledge of the contents of the will.  It is usually not necessary to show that the will was read to the testator provided other evidence shows the testator had knowledge of its contents.

    For literate testators, the burden of showing that a testator knew the contents of the will is usually made easier by a general presumption that “[i]f a person of sound mind, able to read and write, and no way incapacitated to acquire knowledge of the contents of a paper, by exercising the faculties he has, signs a testamentary paper, and has it witnessed as required by the statute, then, upon proof of these facts, the will ought to be admitted to probate without further proof that the testator knew the contents of the paper, unless suspicion in someway be thrown upon it.”  Boyd v. Frost National Bank, 196 S.W.2d 497, 507 (Tex. 1946) (quoting Kelly v. Settegast, 2 S.W. 870 (1887)).  The issue then raised is whether this presumption operates in the case of an illiterate testator.

    Some jurisdictions have applied the rebutable presumption that the testator had knowledge of the contents of the will if the will was properly executed even in the case of the illiterate testator.  Other jurisdictions, however, hold that no such presumption arises and that an affirmative showing is required.  In Kelly v. Settegast, 2 S.W. 870 (Tex. 1887), the Texas Supreme Court stated the general presumption and even agreed that it might apply in the case of illiterate persons.  The court, however, indicated that the presumption’s application would be limited to cases where “the will was not written by a person taking benefits under it, was not contrary to the natural affections which a testator similarly situated would likely entertain and when circumstances casting suspicion upon it are not shown.” Id. at 873.  In Kelly the facts were such that the presumption did not apply and there was insufficient proof that the testator knew the contents of the paper (e.g., will drawn by one of the beneficiaries, and no provision for close relatives).

    C.  Suggestions

        You must determine whether your client is illiterate.  But, how do you do so?  Many illiterate people have learned to hide their shortcomings.  Thus, illiteracy may be difficult to detect if you are not looking for it.  If your client is illiterate, you must make sure the client knows the contents of the will and that such can be shown after his or her death.  Although some privacy is sacrificed, a possible way of lessening probate problems would be to have the will read aloud during the execution ceremony.  The witnesses should follow along as the will is read, hear the testator agree to the contents of the will, and then watch the testator sign the will.  It may be good practice to have the witnesses sign a notarized transcript of the ceremony, including a statement of the testator’s inability to read and agreement to what was read, or to have the entire will execution ceremony preserved on videotape.

V.  The Non-English Speaking Testator

    Another special situation confronts an estate planner if he or she is employed to draft a will by a client who is literate but not in English.  People who have recently immigrated to the United States or who are temporarily living here may fit this category.  Approximately one out of ten people in the United States speak a language other than English as their primary language.  “The number of people in the United States who speak languages other than English at home grew to 25 million in the ’80s — roughly 10 percent of the population — and almost half of them were born in this country.  * * *  [T]he number of Spanish speakers increased 65 percent and speakers of Asian languages rose 98 percent.  The number of people 5 years old and older who speak languages other than English at home rose approximately 40 percent.”  Many Don’t Use English at Home, San Antonio Express-News, Jan. 19, 1994, at 18A.

    A.  Will Written in Foreign Language

        The only Texas case located that dealt directly with the issue of whether a will written in a foreign language was entitled to probate was Dieckeow v. Schneider, 83 S.W.2d 417 (Tex. Civ. App.—San Antonio 1935, no writ).  The document in question was a holographic will written in German.  The court held that in Texas “it is no impediment to the probate of a will that is written in a foreign language. [Section 59 of the Texas Probate Code], prescribing the requisites for a valid will, contains no provision requiring a will to be written in the English language.  Nor is there another article of the statute that prohibits the probating of a will written in a foreign language.”  Id. at 417.  Cases from other states are consistent.  For example, in Heupel v. Huepel, 174 P.2d 850 (Okla. 1946), the court refused to deny probate to a will based solely on the fact that it was German.

    The main difficulty with foreign language wills is interpreting their contents.  Portions of the will may be translated differently by different people.  There is always a danger of “losing something in the translation,” especially with languages of different language groups and with technical matters such as taxes.  Although no Texas case on point was found, it seems that courts would handle the situation the same as with ambiguity; that is, they would admit extrinsic evidence to assist their determination of what was intended by the testator.

    The testator may obtain and approve an English translation of his or her will to help prevent such problems.  In a recent New York case, the court dealt with a will that the testator executed in both Hebrew and English.  Estate of Louis Rosenak, 710 N.Y.S.2d 813 (Sur. Ct. 2000).  Although the court treated the two documents as one will, there was a problem because there was a difference between them on one point.  Luckily, the court easily resolved this conflict because the Hebrew will included a clause stating that in the case of discrepancies, the language in the Hebrew will controls.

    B.  Will Written in English

        The situation where a will is written in a language which the testator cannot read is quite similar to that of the illiterate testator.  The first issue is whether this has an adverse impact on testamentary capacity.  The general rule is that testamentary capacity is not necessarily affected because the testator did not read or understand the language in which the will was written.  See Salinas v. Garcia, 135 S.W. 588 (Tex. Civ. App. 1911, writ ref’d).  The biggest problem, of course, is to show that the testator knew the contents of the document and intended those contents to guide the disposition of his or her property upon death.

    C.  Suggestions

        Precautions such as those discussed for illiterate testators should be taken to help avoid will contest actions.  Perhaps a translation of the will in the testator’s native language that is approved by the testator would also be beneficial.  But, problems could arise if there are inconsistencies between the two versions.  It is a good idea to include a clause in one will that states which will controls in the event that there are differences between the two.  If both documents are executed as wills, as contrasted with one being merely a conformed copy, additional problems will arise if only one version is located upon the testator’s death.  If both versions cannot be produced, the court may determine that the testator destroyed one of the versions with the intent to revoke the will.

VI.  Conclusion

    An estate planner must be vigilant to ascertain whether a client has a communication challenge.  Some challenges will be readily apparent while others may be less noticeable.  After detecting communication challenges, the attorney should take steps to be certain that the client’s situation is not used to support a challenge to the will.  By being alert to these issues and taking appropriate steps during will preparation and execution, you can significantly increase the likelihood that your client’s intent will be carried out.

(The author would also like to thank Ms. Lucy Kephart for her excellent contributions to this article.)

In publishing this article, the authors are not engaged in rendering legal, accounting or other professional service. If legal advice is required, the service of a competent professional should be sought.