Substantial Compliance Approach Rejected

In In re Estate of Iversen, 150 S.W.3d 824 (Tex. App.—Fort Worth 2004, no pet. h.), the probate court admitted Testator’s typed notarized will into probate even though it was unwitnessed. The court determined that the affidavits of two individuals who saw Testator sign the will were sufficient to satisfy the attestation requirement because the will was in “substantial compliance” with Texas Probate Code § 59(a).

The appellate court reversed. The court examined § 59(a) and determined that its requirements were “straight-forward,” that is, a nonholographic will must be attested by at least two witnesses “who subscribe their names thereto in their own handwriting.” The court recognized that the notary could be counted as an attesting witness but that still left the will one witness short. The court also explained that the “substantial compliance” language of the code applies to the form of the self-proving affidavit, not the will itself. Accordingly, Testator died intestate.

Bottom line:  The Texas court refused to adopt the substantial compliance standard of Uniform Probate Code § 2-503.