Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, November 29, 2018

Court Affirmed the Probate of a Will Where the Testator, a Quadriplegic, Blinked his Desires to Draft and Execute the Will

TexasIn Estate of Luce, the court of appeals affirmed a trial court’s admitting a will to probate where the decedent did not personally sign it and communicated his desires only by blinking. A week after he had a serious accidently and was paralyzed from the chest down, intubated, and unable to a speak, the testator and his attorney was able to draft a will based on the testator’s blinked responses to a series of leading questions, and through this system, he directed a notary to sign the will for him.

When his estranged wife - the two were in the middle of a highly contested divorce at the time of the accident - attempted to probate an earlier, 1998 will, the sister entered into evidence the most recent 2015 will. After a jury trial, the trial court admitted the 2015 will to probate and appointed the sister as independent executor but awarded the wife nearly $200,000 in attorney’s fees and expenses. Both parties appealed.

The wife claimed that it was not a valid will due to the testator not personally signing it. The Texas Estates Code requires that a will be signed by the testator or by another person on the testator’s behalf in the testator’s presence and under the testator’s direction. Texas Government Code explains that a notary may sign for a person that is physically unable to do so, in front of the individual and a witness that has no legal or equitable interest in the document being notarized. A notary, through the blinking-response system and in front of the testator and his attorney, signed the will for the testator.

The wife also claimed on appeal that the testator did not have the mental capacity to execute a new will after the accident. The evidence showed that testator did not have a brain injury from the accident. The medical records indicated that he was lucid. Two days after executing the will, a doctor examined the testator. The doctor determined that he was fully competent and able to make his own decisions, including financial and medical decisions.

The appeals court affirmed the trial court's finding that the 2015 will was properly executed, and reversed the award of attorney's fees and expenses to the wife.

See David Fowler Johnson, Court Affirmed the Probate of a Will Where the Testator, a Quadriplegic, Blinked his Desires to Draft and Execute the Will, Texas Fiduciary Litigator, November 24, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.


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