In In re Estate of Silverman, a trial court granted a will contestant’s summary judgment and denied a handwritten document’s admission to probate as the last will of the decedent. No. 14-18-00256-CV, 2019 Tex. App. LEXIS 4579 (Tex. App.—Houston [14th Dist.] June 4, 2019, no pet. history). The proponent argued that the document could be testamentary in character as it appointed the decedent’s office manager as an executor. The proponent appealed. The court of appeals first discussed a court’s duty to admit a document to probate:
A court’s first duty in a proceeding to admit a writing offered for probate is to determine whether the writing is testamentary in character. If the document is not of testamentary character it is not a will and cannot be admitted to probate. We must ascertain the testator’s intent from the language used within the four corners of the instrument offered for probate. It is essential that the maker shall have intended to express his testamentary wishes in the particular document offered for probate.
The requisite testamentary intent does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but rather upon his intention to create a revocable disposition of his property to take effect after his death. Generally, to be testamentary in character, a writing must possess certain essential characteristics. The writing must be revocable during the maker’s lifetime. The writing must be ineffectual as a transfer of any rights or interest before death. Further, courts often state that the writing must operate to transfer, convey, or dispose of the testator’s property upon death.
Id. The court also discussed admitting a handwritten document to probate. The court stated that it would not ordinarily construe a purported will before its admission to probate. “On occasion, however, courts have construed purported wills before admitting them to probate. For example, it may be necessary or appropriate to construe a writing offered for probate to decide whether it is testamentary. Additionally, courts have construed disputed language in a purported will before its admission to probate when an interested party seeks a declaratory judgment, as the Contestants have done here.” Id.
The court then held that it construed the handwritten document at issue as naming an executor but was ambiguous as to whether it transferred or devised any property. The contestants argued that the will gave the executor rights and powers of an executor but that person had been devised no ownership rights to any property. The executor argued that the phrase “Karen Grenrood . . . has all legal rights to my estate in the case of my untimely or timely death” is an effective devise of all property. The court of appeals concluded that both sides’ interpretations were reasonable: “But whether the handwritten document does or does not dispose of Silverman’s property is a matter for the factfinder to decide. If the document disposes of property then it may be admitted to probate, presuming other testamentary characteristics exist.” Id. The court also held that the document should have been admitted to probate because it named an executor. The court concluded: “In sum, we hold that the probate court erred by denying the handwritten document admission to probate on the ground that it lacks testamentary intent because it does not transfer or dispose of property. We reach this conclusion for two reasons: (1) the document is ambiguous whether it disposes of property; and (2) presuming it does not dispose of property, it names or appoints an executor, as the parties agree.” Id.
