Jeremy G. suffered severe paralysis in an automobile accident at the age of 69. His only way of communicating was through a blinking system established through the help of a speech therapist, whereby he answered questions “yes” and “no.”  Jeremy had a prior will which benefitted his estranged wife. Using the blinking system, Jeremy’s lawyer drafted a will benefitting his siblings and omitting the estranged wife. Will the new will be valid or will the estranged wife take under the earlier will if she attempted to probate it?

A valid will must express the intentions of the Testator, the person making the will. The Fort Worth Court of Appeals found in a similar case, Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577 (Tex. App. – Fort Worth Nov. 15, 2018, no pet.) that the blinking system was sufficient to establish the Testator’s wishes.  Therefore, Jeremy’s lawyer could draft a will based on Jeremy’s answering the lawyer’s questions through the blinking system.

Generally speaking, a valid will must be signed by the testator. However, Texas Estates Code, Section 251.051(2)(B) provides that a designated proxy may sign for the Testator, as long as the proxy signs in the Testator’s presence. Therefore, Jeremy, using the blinking system, could designate a person to sign his will for him.

In order for the self-proving affidavit of a will to be effective, a notary public must sign the will. The self-proving affidavit allows the will to be probated without having to bring the witnesses in to testify in court. The Fort Worth court in Estate of Lucefound that the Texas Government Code, Section 406.0165, authorizes a notary to sign a document, if directed to do so by a person who is unable to sign.

As with any will, Jeremy must have the mental capacity to make the will. If, as would be anticipated, the estranged wife, challenges the new will based upon undue influence, whether Jeremy’s siblings subverted his true desires through influence over him in making this will would become relevant.    

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.