Cason v. Taylor, 51 S.W.3d 397 (Tex. App.—Waco 2001, no pet.).
Testatrix died survived by Son and Daughter. On Daughter’s petition,
the court admitted Testatrix’s formal will to probate as a muniment of
title. This will gave Daughter substantially all of Testatrix’s estate.
Son brought forth evidence of a later holographic will which made
various gifts to the two children and a grandchild. The will then
divided the remainder equally between Son and Daughter. Although Son was
unable to produce this will in court, the court found that there was
sufficient evidence of the existence, validity, and contents of the
will. Prob. Code § 85. Accordingly, the court admitted the holographic
will to probate and set aside the probate of the earlier formal will.
Daughter appealed.
The appellate court affirmed. The court examined the evidence and found
that it was legally and factually sufficient to support the trial
court’s findings that (1) the instrument was wholly in Testatrix’s
handwriting and that she signed it, (2) the original will could not be
found because Daughter surreptitiously took control of it, now denies
its existence, and Son could not produce it by reasonable diligence, and
(3) the contents of the will were proved by a credible witness who read
it or heard it read.
Moral: The testator must find a safe storage place for the will that is
not accessible to the heirs, either now or after death, but yet a
location where the will may be quickly found upon the testator’s death
by an appropriate person
Cason v. Taylor, 51 S.W.3d 397 (Tex. App.—Waco 2001, no pet.).
Testatrix died survived by Son and Daughter. On Daughter’s petition,
the court admitted Testatrix’s formal will to probate as a muniment of
title. This will gave Daughter substantially all of Testatrix’s estate.
Son brought forth evidence of a later holographic will which made
various gifts to the two children and a grandchild. The will then
divided the remainder equally between Son and Daughter. Although Son was
unable to produce this will in court, the court found that there was
sufficient evidence of the existence, validity, and contents of the
will. Prob. Code § 85. Accordingly, the court admitted the holographic
will to probate and set aside the probate of the earlier formal will.
Daughter appealed claiming that the holographic instrument lacked
testamentary intent.
The appellate court affirmed. Daughter pointed to the terms of the
holographic instrument which was not labeled as a will. Instead, the
instrument read like a letter beginning with the phrase “Dear Children.”
The court, however, examined the evidence and found that there was
sufficient evidence to support the trial court’s finding that Testatrix
had testamentary intent when she signed the letter. The document used
phrases such as “divided equally” and “to go to.” Although one witness
testified that Testatrix called the instrument a letter, the same
witness explained that Testatrix wanted the letter to supersede the
formal will.
Moral: A document intended as a will should clear be labeled as such and
should refrain from using language which could be interpreted as another
type of document such as a letter or deed. Of course, this case also
demonstrates the danger of lay individuals preparing their own wills.
Cason v. Taylor, 51 S.W.3d 397 (Tex. App.—Waco 2001, no pet.).
Testatrix died survived by Son and Daughter. On Daughter’s petition,
the court admitted Testatrix’s formal will to probate as a muniment of
title. This will gave Daughter substantially all of Testatrix’s estate.
Son brought forth evidence of a later holographic will which made
various gifts to the two children and a grandchild. The will then
divided the remainder equally between Son and Daughter. Although Son was
unable to produce this will in court, the court found that there was
sufficient evidence of the existence, validity, and contents of the
will. Prob. Code § 85. Accordingly, the court admitted the holographic
will to probate and set aside the probate of the earlier formal will.
Daughter appealed claiming that the holographic instrument did not
revoke the formal will.
The appellate court affirmed. The court explained that Prob. Code § 63
permits formal wills to revoke holographic wills and visa versa.
Although the holographic will did not contain an express revocation
provision, it did revoke the formal will by inconsistency because it
disposed of Testatrix’s entire estate. The will made specific gifts and
then devised/bequeathed “the rest of” Testatrix’s estate.
Moral: A new will should contain a provision expressly revoking prior
wills.
Cason v. Taylor, 51 S.W.3d 397 (Tex. App.—Waco 2001, no pet.).
Testatrix died survived by Son and Daughter. On Daughter’s petition,
the court admitted Testatrix’s formal will to probate as a muniment of
title. This will gave Daughter substantially all of Testatrix’s estate
and contained an in terrorem provision. Son brought forth evidence of a
later holographic will which made various gifts to the two children and
a grandchild. The will then divided the remainder equally between Son
and Daughter. Although Son was unable to produce this will in court, the
court found that there was sufficient evidence of the existence,
validity, and contents of the will. Prob. Code § 85. Accordingly, the
court admitted the holographic will to probate and set aside the probate
of the earlier formal will. Daughter appealed claiming that Son violated
the no-contest clause.
The appellate court affirmed. An in terrorem provision in a revoked will
is irrelevant and ineffective.
Moral: For a no-contest clause to be effective, the will in which it is
found must be admitted to probate and that probate must not be later
revoked.