Most of us understand the importance of having a valid will, but very few understand the requirements upon which a will’s validity depends. A will must satisfy two kinds of criteria to be valid. First, the will must satisfy the formal requirements of execution and being witnessed. Second, a will must satisfy the requirements relating to the testator’s state of mind at the time that the will is signed.
Texas statutes specify the formal requirements for a will to be valid. First, the will must be signed by the testator or a representative acting at the testator’s direction and in the presence of the testator. Second, the signing of the will must be witnessed by two or more credible and competent witnesses who sign the will in the presence of the testator. A will may be made “self-proving” if the testator executes an affidavit that complies with the applicable statute. Self-proving wills have the advantage of being provable in court without the appearance of either of the witnesses.
A will must identify the testator and must be written with both testamentary intent and testamentary capacity. Testamentary intent is not required by statute, but many courts here have imposed this requirement.
In order to be valid, a will must reflect the intent of the testator to dispose of his or her assets on death. If a will was executed under compulsion, the element of testamentary intent cannot be proved and the will most likely be held to be invalid. The testator must also have shown the element of testamentary capacity at the time of executing the will. Texas courts have established a five-part test for proving testamentary capacity:
- The testator’s ability to understand the operation of the will;
- The testator’s ability to understand the effect of signing the will;
- The capacity to know who is receiving property under the will;
- The capacity to know the general nature of his or her property; and
- The capacity of memory sufficient to collect and understand the elements of bequeathing his or her property.