The making of a will is serious. A valid will dictates who gets your property and when they get it.
An invalid will can result in your property passing according to Texas intestacy law. It can also set up an expensive probate dispute.
This is why estate planning attorneys take such care in helping clients properly execute wills.
One common question is whether the two witnesses to the will have to witness the decedent or testator sign the will. Put another way, can the decedent or testator sign the will and then, at some point in the future, have the witnesses sign the will? Is the will valid without simultaneous signatures?
The Venner v. Layton, 244 S.W.2d 852 (Tex. App.–Dallas 1951) case provides an opportunity to consider this question.
Facts & Procedural History
This case involves a will that was prepared and signed by the decedent.
At some point after the decedent signed the will, she had two witnesses sign the will. One witness was her doctor who made a house call. Later, she had a family friend at her house and asked her to sign as a witness.
Both witnesses testified that the decedent had showed them the will, identified her signature on the will, and asked them to sign the will as witnesses.
The probate court entered a directed verdict and admitted the will to probate. On appeal, the court was asked whether the will was properly executed.
How to Execute a Will in Texas
The requirements for a valid will vary from one state to another. The states have different laws that set out the requirements. Some states require more formality than others.
Texas Estates Code 251.051 sets out the requirements for executing wills in Texas:
Except as otherwise provided by law, a will must be:
(1) in writing;
(2) signed by: (A) the testator in person; or (B) another person on behalf of the testator: (i) in the testator’s presence; and (ii) under the testator’s direction; and
(3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
The focus in this case is on the third element. The question is whether the witnesses who subscribe their names to the will have to do so at or around the same time that the decedent or testator signed her name.
The Code does not say whether the signatures have to be close in time.
The Signature Requirement in Texas
The Texas courts have addressed a number of different fact patterns involving the signature requirements for wills.
The Venner case described above is an example. The appeals court in Venner summarized the law as follows:
It was not necessary for the testatrix to sign the will in the presence of the witnesses. All that was required was that the witnesses sign in the presence of the testatrix; Davis v. Davis, Tex.Civ.App., 45 S.W.2d 240; nor was it necessary for the witnesses to sign the will in the presence of each other; Ludwick v. Fowler, Tex.Civ.App., 193 S.W.2d 692; Gainer v. Johnson, Tex.Civ.App., 211 S.W.2d 789. Neither was it necessary that there be affirmative evidence that the testatrix actually read and understood the will since, if she was of sound mind and not subject to undue influence, the fact that she signed it and requested witnesses to sign it, and acknowledged it as her last will, was evidence prima facie sufficient of her knowledge of its contents. Warren v. Ellis, Tex.Civ.App., 137 S.W. 1182. Such contentions are overruled.
There you have it. Venner is still valid today. It stands for the proposition that the witnesses do not have to see the decedent or testator sign the will. Simultaneous signatures are not required.
The Absence of Simultaneous Signatures
Even though Texas law says that the witnesses do not need to see the decedent or testator sign the will, or even be present when the decedent or testator signs the will, those executing wills should not rely on cases like Venner.
The decedent or testator and the witnesses should sign the will when possible.
Simultaneous signatures can help avoid questions about the admissibility of the will. It can also avoid problems where a witness is not able to recall any circumstances about the execution of the will. It can also avoid problems when there is an alleged alteration of the will. This can help avoid probate disputes.