The validity of a will can be a contentious issue within families. Whether attested or holographic, wills must meet specific criteria to be considered authentic and to be admitted to probate.
When allegations of forgery arise, the question becomes: Can the authenticity of a will be proven and what evidence is used to prove the forgery? Is testimony alone enough? What about a handwriting expert? When can a handwriting expert be used?
The recent case of Guerrero v. Salinas, No. 01-21-00563-CV (Tex. App. – Houston [1st Dist.] 2023) provides an opportunity to consider these questions.
Facts & Procedural History
The case involves a will contest. The decedent’s Daughter Silvia filed an application to have the will probated.
Shortly thereafter another one of the decedent’s daughters, Oralia, died. This other daughter’s daughter (i.e., the decedent’s granddaughter), Granddaughter Guerrero, filed an application to be the executor under the will filed by Daughter Silvia.
Daughter Silvia filed an amended application asking to be appointed as the executor.
Granddaughter Guerrero then filed an application with a new will attached, asserting that she had found the original will and that the prior will that was admitted to probate was a forgery.
During this process, the court appointed a temporary administrator.
The underlying dispute involved the decedent’s house. Granddaughter Guerrero was living in the house, and, thus, it could not be sold and divided among the decedent’s four children.
Persons Disqualified to Serve as Executor
Granddaughter Guerrero challenged the appointment of a court-ordered temporary administrator for the estate. However, because of the granddaughter’s status as a convicted felon, her request to be named as the independent executrix was denied by the court.
Section 304.003 of the Texas Estates Code provides a list of criteria that render a person ineligible to serve as an executor or administrator. These criteria include:
- Incapacitation
- Felony conviction without civil rights restoration
- Non-Residency without a resident agent appointed
- Unauthorized fiduciary status for corporations
- Court-declared unsuitability
The granddaughter’s disqualification under the second criterion highlights the gravity of felony convictions and their implications within the probate context.
With that said, this law has recently changed with respect to felons and their ability to serve as executor. Texas SB 1373 changed the law so that in limited circumstances a convicted felon may serve as an executor. Section 304.003 was amended to provide that a convicted felon is not disqualified from serving as executor if (1) the person is named as executor in the will, (2) the person is not otherwise disqualified from serving and (3) the court approves. Thus, had the case been filed today, the outcome may have been different with respect to this part of the case.
Handwriting Experts in Probate Cases
This case also focussed on the authenticity of the decedent’s will and the discovery of the “original will.”
The probate court asked the party’s attorneys to view the two wills on file with the court. In doing so, the granddaughter’s attorney admitted that the 2015 will was the original and that the newly discovered will was a copy of the original 2015 will. However, the attorney asserted that the signature on the 2015 will was forged.
The attorney sought time to have a handwriting expert confirm this claim.
A handwriting expert, also known as a forensic document examiner, plays a crucial role in the verification of the authenticity of a will, particularly when there are allegations of forgery or fraud. These experts have specialized training in the identification of handwriting characteristics and can provide expert testimony in court proceedings.
The probate court refused to provide additional time, as the wills had both been on file with the court for many years at that point.
What Does a Handwriting Expert Do?
A handwriting expert analyzes documents and handwritten markings to verify their authenticity. There is an established process for doing this. Here are the typical steps a handwriting expert may follow when examining a will to verify the validity or invalidity of a signature on a will:
- Collection of Known Samples – The first step often involves collecting known handwriting samples from the testator, preferably from around the same time the contested will was allegedly signed. These samples serve as a benchmark for comparison.
- Initial Examination – The expert begins by conducting an initial examination of the contested signature and the known samples, often using specialized magnifying equipment.
- Features Analysis – The handwriting is broken down into its constituent elements, such as loops, strokes, slants, and other unique traits. The expert may look for natural variations, pressure points, flow, and consistency of certain letter formations.
- Comparative Study – The expert compares the questioned signature on the will with the collected known samples. This involves closely examining each letter and comparing specific traits to identify any discrepancies or similarities.
- Instrumental Analysis – Advanced technology, such as infrared spectroscopy, can be used to analyze the ink and paper, helping to establish whether the materials are contemporaneous with the supposed date of the will’s creation.
- Establish Consistency or Inconsistency – Based on the analysis, the expert will form an opinion about whether the signature on the will is consistent with the known samples. Factors like natural variation, situational factors, and the possibility of simulation or tracing are taken into account.
- Report Preparation – After completing the examination, the handwriting expert prepares a detailed report outlining their methods, findings, and conclusions. This report often includes visual aids like side-by-side comparisons of the signatures.
- Court Testimony – If the case goes to trial, the handwriting expert may be called upon to testify. During this process, they will explain their methodology and findings and can be cross-examined by attorneys for both parties.
Proving Forgery With Testimony Alone
Ultimately, the probate court held a trial and considered the testimony of the parties. Daughter Sylvia testified that the 2015 will was not forged and the granddaughter testified that it was. The probate court weighed the evidence and credibility of the witnesses and concluded that the 2015 will was not forged.
On appeal, the appellate court agreed as the probate court was the trier of fact that had the power to weigh the credibility of the witnesses. It also did not consider the handwriting expert report that was included with the motions in the case, as they were not presented at the trial in the case.
The granddaughter’s challenge to the validity of the will failed due to it not proving that forgery was committed. The court found that the evidence was insufficient. This is the type of difficult case that courts have to decide. Ultimately the felony conviction noted above may have been the deciding factor in this case.
The Takeaway
This case underscores the intricate complexities surrounding the authentication and validity of wills in the face of familial disputes and allegations of forgery. This shows how important it is to have credible witnesses and a handwriting expert for disputes as to the authenticity of a will. It also shows the impact of a felony conviction on the outcome of a case.
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Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
