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Legal Memorandum

To: Supervisory Attorney

From: Samantha Zacharda
Date: November 28, 2011
Re: Assignment for Chapter 12

Statement of Assignment:
I have been asked to prepare this legal memorandum for a chapter
twelve assignment. This assignment is to establish how to draft
and submit a legal memorandum. Also, it was important to
remember the previous chapters when drafting this memorandum.

Under Texas Probate Code, regarding requisites of a will and
exceptions pertaining to holographic wills, Tex. Prob. Code.
Ann. 59, and Tex. Prob. Code. Ann. 60, is a holographic will
valid when, the handwriting is both by the testator and
typewritten, when the will is signed by the testator but no
witnesses, and there is a valid self-proving affidavit?

Brief Answer:
No. The statute requires in the case of a holographic will, that
witnesses are not necessary. However, this is the case only when
the will is written solely in the hand of the testator. The
self-proving affidavit makes no difference to this law. In this
case, only half the will is handwritten by the testator. Under
Texas Probate Code, witnesses are then required. The will does
not have the witnesses required, and therefore is invalid.

Statement of Facts:
Thomas Dixon prepared a will that was written in his own
handwriting for a portion of the will. The rest of the will was
typewritten, because Mr. Dixon was too weak to continue. On
completion of the will, it was then signed by Mr. Dixon. Though
Mr. Dixon had no witnesses to the will, there was self providing
affidavit that met the requirements of the statute.

The rule of law governing the requisites of wills is Texas
Probate Code section 59, which states, in part,Every last will
and testamentshall be in writing, and shall, if not wholly in
the handwriting of the testator, be attested by two or more
credible witnesses Tex. Prob. Code. Ann. 59. This law clearly
lays out that a will must have witnesses when not written wholly
by the testator.
The law regarding exceptions pertaining to holographic wills is
Texas Probate Code section 60, which states, in part, Where the
will is written wholly in the handwriting of the testator, the
attestation of the subscribing witnesses may be dispensed with
Tex. Prob. Code. Ann. 60. This statute clearly states the
requirements for this exception to the requirement of witnesses
to a will. The court still makes this clearer in the case of
Dean v. Dickey, 225 S.W.2d 999 (Tex. Civ. App. 1949).
In Dean v. Dickey, the issue raised was if a will typed wholly
by a testator, intended by the testator to be the testators
last will, and was also signed by the testator and one witness,
was valid for probate as a holographic will. The court ruled
that the will was invalid for probate, because within the
context of the statute, wholly written in the handwriting of
the testator left no room for error. Dean v. Dickey then
establishes that a will must be handwritten, when the context
calls for it under the law.

The rule of law defined by Dean v. Dickey is able to be applied

to numerous similar situations. Like our case, the will in
question was typed, intended to be the last will of the
testator, and was also signed by the testator. Unlike our case
however, the will was wholly typed, and also was signed by one
witness. In our case, the context of the statute requires that a
will not wholly written by the testator be signed by two valid
witnesses. Under the law then, the will does not appear valid in
our case for probate.
The statute requirements can clearly be examined. The testators
will is not wholly in the testators handwriting, as half of it
is typed. Therefore under the Texas Probate Code, the will needs
to have two witnesses to be valid. In our case, the will fails
to have two valid witnesses, and therefore is invalid.
There is to consider however, the effectiveness of the law in
this case. The testator had every intention of following the
requirement of a will. This can easily be proven by the selfproving affidavit. Also, there is the time this law was made to
consider. At the time, the law did not take into consideration
that society would later encourage the use of technology for
documents such as wills. The court may consider that this will
was made in good faith, and may therefore be found valid.

Section 59, of the Texas Probate Code clearly lists the
requirements of a will. A will when not entirely in the
handwriting of the testator, must be signed by two valid
witnesses. The case of Dean v. Dickey states that the term
writing, under the law, must be taken within the meaning of the
statute. In our case, the will of the testator is not wholly
written but half of it is typewritten. The will therefore, is
required to have the signatures of two witnesses.

Section 60, of the Texas Probate Code allows for an exception in

regard to holographic wills. In the case of a holographic will,
when the will is wholly in the handwriting of the testator the
requirement of witnesses is not required. In our case, the
testators will is half typewritten. This exception cannot apply
to our case, and the will is still required to have two
witnesses. Without the signature of two witnesses, the will is
therefore invalid in our case.