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The Will Execution Ceremony

by

Gerry W. Beyer

    One of the most crucial stages of a client’s estate plan is the will execution cere­mony — the point at which the client memorializes his or her desires regarding at-death distribution of property.  Unfortunately, attorneys may handle this key event in a casual or sloppy fashion.  There are even reports of attorneys mailing or hand-delivering unsigned wills to clients along with will execution instructions.  See Hamlin v. Bryant, 399 S.W.2d 572, 575 (Tex. Civ. App.—Tyler 1966, writ ref’d n.r.e.).  Some attorneys may allow law clerks or paralegals to supervise a will execution ceremony.  This practice is questionable not only because it raises the probability of error, but because the delegation of responsibility may be considered a violation of professional conduct rules proscribing the aiding of a non-lawyer in the practice of law.  See Palmer v. Unauthorized Practice Comm. of the State Bar, 438 S.W.2d 374, 376 (Tex. Civ. App.—Houston [14th Dist.] 1969, no writ).  An unprofessional or unsupervised ceremony may provide the necessary ammunition for a will contestant to successfully challenge a will.

    Since the earliest recognition of the power of testation, some type of ceremony has accompanied the exercise of that power.  Will ceremonies help demonstrate that the testator was not acting in a casual, haphazard, whimsical, or capricious manner by furnishing proof that the testator deliberated about testamentary desires and had a fixed purpose in mind when making the will.  The ceremonies also provide evidence that the will was actually made by the testator, by impressing the act on the minds of witnesses.

    A proper ceremony, coupled with sensitive and tactful counseling by the attorney during the entire estate planning process, may make it easier for clients to cope with the inevitability of death.  Unfortunately, attorneys have been accused of showing “little concern about the therapeutic counseling that goes on in an ‘estate planning’ client’s experience.”  Thomas Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 Iowa L. Rev. 376, 376 (1969).  You need to remember that many clients make only one will during the client’s entire life and that the psychological effects of confronting death are strong.  Even if you conduct scores of will ceremonies each year, you must not lose sight of the client’s emotions and the psychological benefits that may be obtained through client interviews and will ceremonies.

    One commentator has somewhat humorously summarized the psychological benefits of the ceremony as follows:

When a client comes in to do something about his estate planning problem, he wants a lot of things.  He wants solace because he is thinking about the day when he will not be here.  He wants approval of what he has done and what he proposes to do.  And he wants something else he almost never gets—a ceremony.  Now, life offers very few opportunities for high ceremony.  Birth is not a very good time.  It is too laborious.  Marriage is handled in rather a spectacular style.  Nobody has been able to do much with divorce on the ceremonial side.  For death, there is a ceremony, but it is hard for a decedent to be there to enjoy it.  He is the principal.

The estate planning process . . . ought to be a high ceremonial occasion because a client should be getting great intangible satisfactions about these significant decisions that he has made that were embodied in the instruments he leaves behind.

Estate Planning for Human Beings, 3 U. Miami Inst. on Est. Plan. § 69.1902 (P. Heckerling ed. 1969) (statement of Dean Willard H. Pedrick, panelist).

    The client’s testamentary desires will be effectuated only if all formalities are satisfied.  The reporters are filled with cases in which a testator had the requisite legal and testamentary capacity and intent, but where a defect in the ceremony caused the will to fail.  A properly conducted will execution ceremony helps assure compliance with the various formalities required for a valid will as well as impressing the event on the witnesses’ minds.

    When errors with the will execution ceremony are discovered during the testator’s lifetime, the testator’s only loss is typically only the cost of having another will prepared and executed.  This is normally not the type of situation where malpractice liability is litigated.  The attorney may be able to avoid becoming a defendant by simply having the will re-executed without cost to the client and providing appropriate apologies for the inconvenience.  Of course, if tax benefits were lost because of the error, the attorney’s liability could be significantly greater.

    Errors in the ceremony, however, often do not manifest themselves until after the client’s death.  At that time, the testator’s estate probably could sue the negligent attorney.  In a suit by the testator’s estate, however, the only damages would be the attorney’s fees paid for drafting the will since there is usually no other diminution of the estate funds caused by the error.  Accordingly, if there is a flaw in the will execution ceremony causing the will to be ineffective and that flaw can be traced to the conduct of the attorney in charge of the ceremony, it is the intended beneficiaries who now find themselves short-changed who are apt to bring a malpractice action.  Although the success of such an action is unlikely in Texas under Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), do not take this case as permission to be careless in conducting will execution ceremonies.  A negligent ceremony which causes the will to fail frustrates your client’s intent, causes financial loss to the individuals the client wanted to benefit upon the client’s death, results in personal embarrassment to the negligent attorney, and reduces business once word of the negligent conduct becomes public.

    This article suggests a comprehensive step-by-step format for a proper will execution ceremony under Texas law which can provide economical “will insurance” for every testator.  Note that the basic structure of this will ceremony may also be used to formulate execution procedures for other estate planning documents.

I.  Prior to the Ceremony

    The following four steps will help impress on the testator the seriousness of the upcoming execution ceremony and give you another opportunity to check for potential problems.

    A.  Proofread Will

        Before the client arrives for the will execution ceremony, the attorney should carefully proofread the will for errors such as misspellings and omissions.  To reduce the number of inadvertent errors, it is advisable for another attorney to review the will.  All errors should be carefully corrected and a new original prepared; interlineations, mark-outs, erasures, and correction fluids should not be used.

    B.  Assure Internal Integration of Will

        The attorney should inspect the will to ensure that all pages are typed or printed on the same kind of paper, all pages are the same size, the font types and sizes are consistent throughout the will, each page is numbered using ex toto (e.g., page 4 of 10) pagination, and there are no excessive blank spaces.

    The pages of the will need to be securely fastened together, but it is a good idea to wait until after the client has reviewed the will to facilitate any last minute changes or corrections.  If the pages of the will are stapled, the staples should not be removed once inserted; multiple staple holes may be evidence of improper page substitution.  See Mahan v. Dovers, 730 S.W.2d 467, 469 (Tex. App.—Fort Worth 1987, no writ).

    C.  Review Will With Client

        The attorney should review the final draft of the will with the client to confirm that the client understands the will and that it comports with the client’s intent.  The client should have adequate time to read the will to ascertain that corrections to prior drafts have been made and to determine that no unauthorized provisions have inadvertently crept into the will.

    D.  Explain Ceremony to Client

        The attorney should explain the mechanics of the will execution ceremony to the testator in language the testator understands.  Legal jargon should be avoided because the client may be too embarrassed to admit a lack of understanding.  It is helpful for the client to know how the ceremony will proceed and what is expected, e.g., to answer certain questions.

II.  The Ceremony

    A carefully scripted execution ceremony can help ensure that a testator’s will is valid and thus prevent a contest.

    A.  Select Appropriate Location

        The will execution ceremony should take place in pleasant surroundings.  A conference room works well, as does a large office with appropriate tables and chairs.  The client should be comfortable and at ease during the ceremony.  A relaxed client is more likely to present a better image to the witnesses.

    B.  Avoid Interruptions

        The ceremony should be free of interruptions.  Thus, secretaries should hold all telephone calls and be instructed not to interfere with the ceremony.  Once the ceremony begins, no one should enter or leave the room until the ceremony is completed.  Interruptions disrupt the flow of the ceremony and may cause the supervising attorney to inadvertently omit a key element.

    C.  Gather Participants

        The testator, two or three disinterested witnesses, a notary, and the supervising attorney should be gathered at the appropriate location.  As a precaution against claims of overreaching and undue influence, no one else should be present under normal circumstances.

    D.  Seat Participants Strategically

        The participants need to be seated so each can easily observe and hear the others.  The attorney should be conveniently located near the participants to make certain the proper pages are signed in the correct places.

    E.  Make General Introductions

        The attorney should introduce all participants.  Although it may be advisable to use witnesses already known to the client, it is a common practice for attorneys to recruit anyone who is around (e.g., secretary, law clerk, delivery person) to serve as the witnesses.  Accordingly, it is important to impress the identity of the testator on the witnesses so they will be able to remember the ceremony should their testimony later be needed.

    F.  Explain Ceremony

        The attorney should explain the importance of the will execution ceremony and that it is about to commence.  Although Texas law does not require publication for a valid will, (Davis v. Davis, 45 S.W.2d 240, 241 (Tex. Civ. App.—Beaumont 1931, no writ)), it is useful for the witnesses to know the type of document being witnessed.  In addition, publication is required for the self-proving affidavit.  Tex. Prob. Code Ann. § 59 (Vernon Supp. 1999) (requiring the witnesses to swear that the testator stated that the instrument is testator’s last will and testament).

    G.  Establish Testamentary Capacity

        If the attorney anticipates a will contest, it is especially important to establish each element of testamentary capacity during the ceremony.  The attorney and the testator should engage in a discussion designed to cover the elements of testamentary capacity as found in Texas cases such as Prather v. McClelland, 76 Tex. 574, 584-85, 13 S.W. 543, 546 (1890), i.e., the attorney should demon­strate that the testator knows the testator is executing a document disposing of the testa­tor’s property upon death, that the testator knows the general nature and extent of the testator’s property and the natural objects of the testator’s bounty, and that the testator is able to appreciate these things at the same time so as to make reasonable judgments.

    H.  Establish Testamentary Intent

        Questions substantially in the following form should be directed to the testator to demonstrate testamentary intent.

§ [Testator’s name], is this your will?

§ Have you carefully read this will and do you understand it?

§ Do you wish to make any additions, deletions, corrections, or other changes to your will?

§ Does this will dispose of your property at your death in accor­dance with your desires?

§ Do you request [witnesses’ names] to witness the execution of your will?

    I.  Conduct Will Execution

        The following steps should be followed when the testator executes the will.

§ All writing on the will should be in blue ink to make an obvious distinction between the original and a photocopy.  The will’s testimonium and attestation clauses should indicate that the testator and the witnesses used blue ink.

§ Testator initials each page of the will, except the last page, at the bottom or in the margin to reduce later claims of page substitution.

§ Testator completes the testimonium clause by filling in the date and location of the ceremony.

§ Testator signs the will at the end.  The testator should sign as the testator usually does when executing legal documents to prevent a contest based on forgery.  See In re Estate of Jernigan, 793 S.W.2d 88, 90 (Tex. App.—Texarkana 1990, no writ) (The testator signed the first letter of his name with a lower case letter rather than with an upper case letter as he had previously done on other documents.  The evidence revealed that the testator sometimes signed documents, such as his driver’s license, beginning with a lower case letter.  The court found that the trial court’s refusal to hold that the testator’s name was forged was not against the great weight and preponderance of the evidence.).

§ The attorney should pay close attention to make certain everything is written in the proper locations.

§ Although not a necessary element of a valid will under Texas law, the witnesses should watch the testator sign the will so that they may testify to the signing.

    J.  Conduct Attestation by Witnesses

    The following procedure should be used for the witnesses’ attestation.

§ One of the witnesses reads the attestation clause aloud to help impress the will execution ceremony on the minds of the witnesses.

§ Each witness initials every page, except the page with the attestation clause, at the bottom or in the margin.  This helps reduce claims of page substitution.

§ One of the witnesses dates the attestation clause to provide additional evidence of when the execution occurred.

§ Each witness signs the attestation clause and writes his or her address and social security number.  Having this information on the will may be helpful should it later become necessary to locate the witnesses.

§ The attorney carefully watches to make certain everything is written in the proper locations.

§ The testator observes the witnesses signing the will.  Although the testator is not required to see the witnesses sign, the attestation must take place in the testator’s presence.  Tex. Prob. Code Ann. § 59 (Vernon Supp. 1999).  The term presence has been defined as a conscious presence, i.e., “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.); see also Morris v. Estate of West, 643 S.W.2d 204, 206 (Tex. App.—Eastland 1982, writ ref’d n.r.e.) (attestation deemed to be outside of testator’s presence because testator could not have seen witnesses sign without walking four feet to office door and fourteen feet down a hallway).

§ The witnesses observe each other signing.  Although this is not required under Texas law, the witnesses will provide better testimony concerning the ceremony if they observe each other signing the will.

    K.  Declare Will Executed

        After the attestation is finished, the attorney should declare that the will is executed.  A clear demarcation between the actual will ceremony and the completion of the self-proving affidavit is important because a proper will is a prerequisite to an effective self-proving affidavit.

    L.  Complete Self-Proving Affidavit

        The completion of the self-proving affidavit should include the following steps.

§ The attorney explains the purpose and effect of a self-proving affidavit, i.e., to make probate easier and more efficient by allowing the will to be admitted without the testimony of witnesses.  Tex. Prob. Code Ann. § 59 (Vernon Supp. 1999).

§ The notary takes the oath of the testator and witnesses.  See Broach v. Bradley, 800 S.W.2d 677 (Tex. App.—Eastland 1990, writ denied) (self-proving affidavit held invalid because the notary had not properly sworn the witnesses).

§ The notary asks the testator to answer the following questions.  These questions are modeled after the statutory form.  Tex. Prob. Code Ann. § 59 (Vernon Supp. 1999).  Having the testator answer questions impresses the ceremony on the witnesses better than if the testator is merely asked to read and sign the affidavit.

§ [Testator], is this document your last will and testament?

§ Have you willingly made and executed your will?

§ Did you do so as your free act and deed?

§ The notary asks the witnesses to answer the following questions. These questions are modeled after the statutory form.  Tex. Prob. Code Ann. § 59 (Vernon Supp. 1999).  Having the witnesses answer questions impresses the ceremony on the witnesses better than if they are merely asked to read and sign the affidavit.

§ Did [testator] declare to you that this is his/her last will and testament?

§ Did [testator] execute this document as his/her last will and testament?

§ Did [testator] want [witnesses] to sign it as witnesses?

§ Did you sign the will as a witness?

§ Did you sign the will in [testator’s] presence?

§ Did you sign the will at the request of [testator]?

§ Was [testator] at the time of will execution eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service)?

§ Was [testator] of sound mind?

§ Are you at least fourteen years of age?

§ The testator and witnesses sign the affidavit.

§ The attorney carefully watches to make certain everything is written in the proper locations.  The self-proving affidavit will have no effect if signatures on the affidavit are needed to prove the will.  Tex. Prob. Code Ann. § 59 (Vernon Supp. 1999) (“A signature on a self-proving affidavit is considered a signature to the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that case, the will may not be considered a self-proved will.”).  Note that under prior law, the will failed if the witnesses’ signatures were misplaced on some other document such as the self-proving affidavit.  See, e.g., Wich v. Fleming, 652 S.W.2d 353, 355 (Tex. 1983); Boren v. Boren, 402 S.W.2d 728, 729-30 (Tex. 1966).

§ The notary signs the affidavit and affixes the appropriate seal or stamp.

§ The notary records the ceremony in the notary’s record book.  Tex. Gov’t Code Ann. § 406.014 (Vernon 1990).

    M.  Conclude Ceremony

        The attorney should indicate that the will execution ceremony is now completed.  If other estate planning documents, such as a directive to physicians, self-declaration of guardian, or durable power of attorney, are needed in the estate plan, it is convenient to execute them at the same time because these documents often require witnesses or self-proving affidavits.

III.  After the Ceremony

    As soon as the ceremony ends, take a few additional steps to make sure that the testator understands what just happened and to protect the newly executed will.

    A.  Confirm Testator’s Intent

        The attorney should talk with the testator to confirm that the testator understood what just happened and that the testator does not have second thoughts about the disposition plan.

    B.  Make Copies of Will

        The attorney should retain a photocopy of the executed will so that the attorney may review it on a periodic basis to determine whether revisions are needed due to a change in the law or testator’s circumstances.  In addition, the copy of the executed will is useful evidence of the will’s contents if the original cannot be produced after death and there is sufficient evidence to overcome the presumption of revocation.  See Mingo v. Mingo, 507 S.W.2d 310, 311 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.) (unlocated will presumed revoked if it was in possession of testator when last seen); Tex. Prob. Code Ann. § 85 (Vernon 1980) (requirements to prove a written will not produced in court). Each copy should be clearly stamped, "copy."

    C.  Discuss Safekeeping of Original Will

        Determining the proper custodian of the original will is a difficult task and an anticipated contest makes it even more difficult.  It is important to store the original will in a secure location where it may be readily found after the testator’s death.  Thus, some testators elect to keep the will at home or in a safe deposit box, and others prefer for the attorney to retain the will.  In the normal situation, an attorney should refrain from suggesting to retain the original will because the original is then less accessible to the testator.  Consequently, the testator may feel pressured to hire the attorney to change the will and the executor or beneficiaries may feel compelled to hire the attorney to probate the will.  Some courts in other jurisdictions hold that an attorney may retain the original will only “upon specific unsolicited request of the client.”  State v. Gulbankian, 196 N.W.2d 733, 736 (Wis. 1972).  If a will contest is likely, however, it may be dangerous to permit the client to retain the will because the will then stands a greater chance of being located and destroyed or altered by the heirs.  An attorney may need to urge the testator to find a safe storage place that will not be accessible to the heirs, either now or after death, but yet a location where the will may be found and probated, while taking care not to urge that the attorney act as the will’s sanctuary.  The executor named in the will, especially if the executor is a non-family member/non-beneficiary or a corporate fiduciary, may be able to provide such a safe haven for the will.

    D.  Destroy or Preserve Prior Will

        When a new will is executed, it is common practice to physically destroy prior wills.  If the testator’s capacity is in doubt, however, and the testator indicates a preference for the prior will’s dispositive plan over intestacy, it is a good idea to retain the prior will.  If a court holds that the new will is invalid, the attorney may offer the old will for probate much to the chagrin of the contestant.  See Leon Jaworski, The Will Contest, 10 Baylor L. Rev. 87, 95 (1958).

    E.  Provide Testator With Post-Will Instructions

        The attorney should provide the testator with a list of post-will instructions containing at least the following:

§ Discussion of the need to reconsider the will should the testa­tor’s life or circumstances change due, for example, to births or adoptions, deaths, divorces, marriages, change in feelings toward beneficiaries and heirs, significant changes in size or composition of estate, or change in state of domicile.

§ Explanation that mark-outs, interlineations, and other informal changes are usually insufficient to change the will.  See Leatherwood v. Stephens, 24 S.W.2d 819 (Tex. Comm’n App. 1930, judgment adopted)

§ Instructions regarding safekeeping of the original will.

§ Statement that the will must be reviewed if relevant state or federal tax laws change.

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