In re Estate of Teal, 135 S.W.3d 87 (Tex. App.—Corpus Christi 2002, no pet.).


Testator signed a two-page typed will. The attestation clause on the bottom of the front of page two was signed by Notary who also placed her notary seal on this page. On the back of page two appeared the signatures of two individuals with the word “witness” handprinted beneath each.

The trial court admitted the will to probate based on Notary’s testimony; the designated witnesses could not be located. Surviving Spouse appealed asserting that the will did not comply with the formalities of Prob. Code § 59(a) and was not properly proved under Prob. Code § 88. Surviving Spouse claimed that Notary could not be considered as a witness to the will because she intended to sign the will as a notary, not as a witness.

The appellate court affirmed. The court focused on the role of a will witness which is to prove that the testator executed the will with “the formalities and solemnities and under the circumstances required to make the will valid.” Teal at 90. The court held that Notary could serve as a subscribing witness even though she did not intend to be a subscribing witness when she signed. The court stressed what Notary actually did rather than what she thought she was doing. Notary engaged in witness-type behavior such as speaking with Testator, determining that he was of sound mind, and confirming that he was aware of the contents of the will.

Moral: Courts are willing to look at the substance, rather than the form, of a signature on a will. And, of course, a properly executed self-proving affidavit would prevent many of these types of problems.

Note: The court also reiterated several important will principles: