When people think about creating a will, they often picture either a formal document prepared by an attorney or a handwritten document penned by the testator. But what about a will that is typed by the testator themselves? Can someone sit down at a computer, type out their wishes for property distribution after death, print the document, sign it with witnesses, and have it admitted to probate?
The question of whether typed wills are valid in Texas has practical importance. Many people have access to computers and word processing software. Typing a will may seem simpler and clearer than writing one out by hand. The typed format produces a neat, legible document that eliminates concerns about illegible handwriting. But does Texas law recognize such documents as valid wills?
Related questions arise about execution requirements. If typed wills are valid, what formalities must be followed? Must the testator sign with pen and ink or can the signature also be typed? What about witness requirements? Can a typed will meet the attestation requirements under Texas law?
Zaruba v. Schumaker, 178 S.W.2d 542 (Tex. Civ. App.—Galveston 1944, no writ) provides an opportunity to consider these issues.
Facts & Procedural History
Jaroslav and Emma were husband and wife. Both died on the same day. Jaroslav survived his wife by about three hours. A. Zaruba was appointed administrator of Jaroslav’s estate. That estate included property owned by Emma at the time of her death.
While the administration proceedings in Jaroslav’s estate were pending, Annie (Emma’s mother) filed a claim against the estate for money alleged to be due her by the estates of both Jaroslav and Emma, for damages, and for certain items of personal property. In a compromise and settlement of the claims, Annie received a quitclaim deed from the heirs to an undivided interest in a tract of land, a refrigerator, and $100 in cash.
After filing her claim but before it was settled, Annie found an alleged will of Emma and delivered it to her attorney. She did not disclose to the estate’s attorney that she had found the will, although there was some discussion during settlement negotiations as to whether Emma had left a will. Approximately a year after the settlement of Annie’s claim with the administrator, the alleged will was offered for probate.
The will was typed and signed by Emma. It contained the signatures of two witnesses. In the will, Emma left her estate to her mother Annie. Annie filed an application to probate the will in county court. The county court admitted the instrument to probate.
The heirs contested the application on two grounds. First, they argued the instrument was not executed with the formalities and solemnities required by law to make it a valid will. Second, they claimed Annie was estopped from offering the instrument for probate because she had induced settlement of her claim by falsely representing that Emma had left no will. The district court admitted the will to probate. The heirs appealed.
What Does Texas Law Require for a Valid Will?
Article 8283 of the Vernon’s Annotated Civil Statutes (the predecessor to the current Texas Estates Code) provided that every last will and testament shall be in writing and signed by the testator or by some other person by the testator’s direction and in the testator’s presence. The statute further provided that if not wholly written by the testator, the will shall be attested by two or more credible witnesses above the age of fourteen years, subscribing their names thereto in the presence of the testator.
Under the Texas Estates Code today, a will must meet several baseline requirements to be considered legally valid. It must be in writing—whether typed, printed, or handwritten. The testator must sign the will. The will must be attested by two credible witnesses who also sign the document in the testator’s presence.
The statute does not specify the manner in which the writing must be created. The law does not state that a will must be handwritten by the testator or prepared by an attorney. The statute simply requires that the will be “in writing.” This broad language encompasses various methods of creating written documents.
What Constitutes a Signature Under Texas Law?
The heirs argued that there was no evidence Emma had signed the instrument offered for probate. They contended that a typed signature did not satisfy the statutory requirement that the testator sign the will.
The court examined the definition of signature under Texas law. Article 23 of Vernon’s Annotated Civil Statutes provided that the terms “written” or “in writing” shall include any representation of words, letters or figures, whether by writing, printing or otherwise. The statute further provided that the terms “signature” or “subscribe” shall include the mark of a person unable to write.
Bouvier’s Law Dictionary defined the term “sign” as “to affix a signature to; to ratify by hand or seal; to subscribe to one’s own handwriting.” The courts of Texas have uniformly held that a typed signature is a valid and binding signature. Cases addressing contracts, deeds, and other legal instruments have recognized typed signatures as meeting signature requirements.
The court concluded that every requirement under the statute had been met by competent evidence in the record. The will of Emma was written and signed by her. It was attested by two credible witnesses who signed it at the request of and in the presence of the testator. The typed signature satisfied the statutory requirement that the testator sign the will.
What Does Attestation Require Under Texas Law?
The attestation of a will is the act of witnessing the performance of the statutory requirements to a valid execution of the will. This is done by the witnesses signing their names to the instrument in the presence of the testator. It is not required in Texas that the witnesses sign the instrument in the presence of each other.
The evidence showed that after Emma had written and signed the instrument on a typewriter, she presented it to two witnesses on separate occasions for their signatures. She informed both witnesses that the instrument was her last will and testament and that she had written it as such. She requested each of them to sign the will as witnesses. Each witness signed at her request and in her presence.
This evidence established that the attestation requirements were satisfied. The witnesses did not need to sign in each other’s presence. They only needed to sign in the presence of the testator. The fact that Emma presented the document to each witness separately did not defeat the attestation.
Can Representations During Settlement Negotiations Estop Probate?
The heirs argued that Annie was estopped from offering the will for probate. They claimed she had induced the settlement of her claim against Jaroslav’s estate by falsely representing that Emma left no will. They contended that Annie concealed the existence of the will during settlement negotiations.
The trial court found that while Annie failed to disclose the will to the estate’s attorney during negotiations, she at no time asserted that Emma died intestate. The receipt signed by Annie acknowledged payment in full settlement of any and all claims against Jaroslav’s estate. The receipt stated that Annie now had no further claims against the estate insofar as indebtedness due by Jaroslav or Emma was concerned. The receipt did not contain any agreement not to probate Emma’s will.
The court addressed whether negotiations and settlement of Annie’s claim could prevent probate of the will. The court held that when a will is offered for probate, the probate court’s authority is limited to determining whether the instrument tendered is the last will of the deceased. The court must determine whether the will had been revoked, whether it was executed in the manner and under the conditions required by law, and whether the maker had testamentary capacity and was not under undue influence when it was executed.
The probate court has no jurisdiction to construe the will or to pass judgment on alleged prior contracts to make devises of property. Its authority is limited to determining whether the instrument in question is the last will of the deceased. The court must make this determination without regard to the right of the deceased to devise and bequeath the property.
The only question before the court was whether the instrument tendered for probate was the last will of Emma. The question of negotiations and settlement of Annie’s claim against Jaroslav’s estate was separate and distinct from this issue. The court had no jurisdiction to pass judgment on an alleged agreement with the administrator in the absence of an express contract or agreement not to probate Emma’s will.
The trial court found that neither the facts alleged nor those introduced in evidence were sufficient to estop Annie from having the will probated. The facts did not warrant the conclusion that there was an agreement, express or implied, between Annie and the heirs that she would not offer the will for probate in consideration of the payment of her claim or a compromise settlement thereof.
The Takeaway
Typed wills are fully valid and enforceable in Texas when executed according to statutory requirements. A testator may create a will by typing it on a typewriter or computer. The testator may sign the will by typing their name. As long as the will is in writing, signed by the testator (whether by pen, typewriter, or other means), and attested by two credible witnesses who sign in the testator’s presence, the will satisfies Texas law. The Zaruba case demonstrates that typed signatures meet the signature requirement and that witnesses need not sign in each other’s presence as long as each signs in the testator’s presence. The case also establishes that settlement negotiations regarding claims against an estate do not estop probate of a will unless there is an express agreement not to probate the will. Courts determining whether to admit a will to probate focus solely on whether the instrument is the valid last will of the deceased and cannot consider alleged contracts or representations made during estate settlement negotiations.
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