Witnesses are an integral part of making a valid will. Of course, if it is a holographic will, which means it is entirely in your own handwriting, then you do not need a witness of the will. But, what does it mean to witness a will? And, what are they witnessing?
In Texas, a will must be witnessed by 2 or more creditable persons who are at least 14 years of age and who sign their names to the will in their own handwriting and in the presence of the Testator (person making the will).
Let’s look at the requirements. First, to witness a will you must be creditable. The courts say “creditable” is synonymous with “competent witness.” That, of course, begs the question, “what is a competent witness?” In this situation, it is not someone who tells the truth. It means, a person who receives no pecuniary benefit under the terms of the will. In basic terms, it means if you witness a will, then you are likely not receiving anything under the will.
What does it mean to be “in the presence of the testator”? It does not require the testator to see the witness. If it did, it would be unfair to those who are blind or have vision impairment. Fortunately, the courts say that unless the testator is blind, the testator must be able to see the witness signing the will. It does not mean the testator must actually watch the witness sign, but he must be in a physical position to see if he were to look at the witness.
The two witnesses are there to verify specific facts. Both of the witnesses must see the testator sign the will. It is not necessary for the witness to read the will. The role of the witness is to attest that the testator appears of sound mind, the testator declared he was signing the will and requested the person to be a witness. The witness is also attesting that the testator signed the will in the presence of the witnesses and the testator was 18 years of age or older.
If you would like to make a will, contact me at the Law Office of Hugh Spires, Jr., PLLC at 210-874-5700 or email me at hspires@TexasWillsLawyer.com.