by
Revised May 10, 2010
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.
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.
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).
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.
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.
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.
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:
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)
The foregoing instrument consisting of this and the [number]
preceding pages was signed, published, and declared by [testator] to be
[his] [her] last will. We now, at [his] [her] request, in [his] [her]
presence, subscribe our names as witnesses this the [day] day of
[month], [year]. For identification, we have each initialed or signed
the [number] preceding pages of this will. We read this will and heard
the full contents of this will read to [testator] by [name of testator’s
attorney or computer software product]. at the express direction of
[testator] who was unable to read [his] [her] will because [he] [she] is
blind [visually impaired]. We certify that the will was accurately read
to [testator].
___________________________ ____________________________
(First Witness)
(Address)
___________________________ ____________________________
(Second Witness)
(Address)
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.
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 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.
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).
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.”
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.
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.
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).
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).
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.
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.
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.
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.
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.
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.
© 2000 Gerry W. Beyer