Texas Courts’ Adherence To Wills Formalities

Texas has historically been a conservative, strict compliance jurisdiction concerning wills formalities. However, legislative, as opposed to jurisprudential developments have granted courts greater leeway in probating defective wills, including a limited substantial compliance provision and a new scrivener’s error rule.

Strict Versus Substantial Compliance 

Since the introduction of Wills Act statutes in the United States, state probate courts have typically adhered strictly to will formalities to reliably serve testators’ intents. The “strict compliance” doctrine has benefited testators and courts. Testators can follow prescribed methods of indicating their testamentary wishes to the court; in turn, courts can reduce the amount of litigation concerning contested wills and ambiguous instructions. The lowered drain on public resources also benefits estate distributees.

In reality, will execution is more complicated for those involved. Testators, witnesses, estate attorneys, notaries, and personal representatives all make mistakes. Strict compliance with the requirements of a state’s probate code can inevitably thwart a testator’s intent if courts “slavishly worship form over substance.” Testacy is always favorable to intestacy, so jurists and lawmakers have proposed two predominant equitable remedies for defective wills: harmless error and substantial compliance. 

These two doctrines are distinct in their purposes, yet so similar in their effects that courts and legislatures can often obscure the two. In theory, the substantial compliance doctrine allows courts to validate documents that ‘substantially comply’ with statutory formalities. Under this doctrine, invalidating wills that fail on minor technicalities “runs counter to the principle of free disposition of property that underlies the law of wills, successions, and donative transfers.” In contrast, the harmless error doctrine focuses on substance over form from the eyes of the testator. Courts use this rule to ask whether a document sufficiently expresses a decedent’s fixed and final testamentary wishes, and if invaliding a testamentary instrument on the basis of a harmless error would frustrate these wishes. 

Texas History: Strict Compliance

Unlike other states, such as New Jersey, Texas has traditionally seen courts’ overwhelming adherence to the strict compliance rule. Certain cases are famous for highlighting the extremity of this judicial trend. In Wich v. Fleming, 652 S.W.2d 353 (1983), the Supreme Court of Texas denied a will to probate for a harmless defect in its execution. Dr. Mabel Giddings Wilkin executed her will at a bank, in front of her attorney and a bank employee. Wilkin signed her name at the bottom of the last page of her will, leaving no space for witness signatures. Her two witnesses instead signed a separate self-proving clause, which Wilkin also signed, as per the requirements of the Texas Probate Code at the time. 

The county court denied probate on account of this execution error. The court of appeals reversed this decision. At the appeal level, the contestants cited a previous decision, Boren v. Boren, in which the decedent signed a one-page will and then he and the two witnesses signed an affidavit on a separate page swearing to the will’s proper execution. The court in that decision denied probate, deciding that the self-proving affidavit was not part of the actual will, and therefore could not help with the execution errors of the original will. The Supreme Court in Wich v. Fleming followed the Boren rule.

The next year, the Court in Morris v. West’s Estate, 643 S.W.2d 204 denied a will to probate for a similarly minor execution error. In Morris, evidence at the probate hearing suggested that the testator signed his will and codicil in a conference room but that he did not watch the witnesses sign these instruments, as they were in another room down the hall. Therefore, the court ruled that the witnesses did not sign the will  “in the presence of the testator” as required under the Code. On appeal, the petitioner tried to argue on the basis of the emerging substantial compliance doctrine, but the Court of Appeal held steadfast to strict compliance with formal requirements. These decisions, and several others following this line of jurisprudence, solidified Texas courts’ unwillingness to stray from the tradition of previous probate courts’ relationship to will execution requirements.

Self-Proving Affidavits

Since its introduction in the late-20th century, courts have applied the substantial compliance doctrine through exercising their judicial discretion. In contrast, courts must follow the legislature when citing the harmless error rule. Various state legislatures have begun adopting harmless error provisions into their estates codes. Texas is exceptional in this respect; it has written a version of substantial compliance into the Texas Estates Code (EST) (formerly the Texas Probate Code). However, this dispensing power is very limited. In Section 251.104 EST (Requirements for Self-Proving Affidavit), Subsection (d) states:

(d) An affidavit that is in substantial compliance with the form of the affidavit provided by Subsection (e), that is subscribed and acknowledged by the testator, and that is subscribed and sworn to by the attesting witnesses is sufficient to self-prove the will.  No other affidavit or certificate of a testator is required to self-prove a will other than the affidavit provided by Subsection (e).

Unlike other substantial compliance jurisdictions, this power is very limited, and cannot be applied to the formal requirements for executing the will itself. Subsection (e) of the EST provides a prescribed form of the affidavit, which must only be “substantially” followed. Self-proving affidavits are very useful tools. A self-proved will can be admitted to probate without the testimony of any of the subscribing witnesses. In many instances, it can be difficult or even impossible for the court to locate witnesses, or they may have predeceased the testator. Self-proved wills are quicker, easier, and less expensive to prove than ones without self-proving affidavits. Substantial compliance makes the process even more efficient and avoids outcomes like the ones found in Wich and Morris.

Courts have since affirmed this “substantial compliance” provision. In In Re Estate of Graham, 69 S.W.3d 598 (2001), the testator’s nieces and nephews contested his will on several grounds, including failure to comply with the statutory requirements for a valid will. They claimed that he did not meet the requirements for a self-proving affidavit because his affidavit did not match the form given in Subsection (e) exactly. In response, the Court probated the testator’s will by recognizing the substantial compliance principle within the statute. The Court reasoned that if it rejected the affidavit due to minor variations in wording, this would have been contrary to the legislative purpose of Subsection (d).

Since Graham, Texas courts have grappled with the question of what is substantially compliant enough with statutory requirements to fall under Section 251.104. In In Re Estate of Crawford, 2014 WL 7140313, the Court of Appeal was tasked with deciding whether to validate a defective self-proved affidavit. The affidavit raised questions about the veracity of the witnesses’ signatures; it omitted any affirmation by a notary; the witnesses did not know the testator and were not sure if he was over the age of majority; and the affidavit lacked any attestation to this effect. However, the affidavit also included a statement by the testator that the document in question was his last will, signed voluntarily, and there was no evidence to suggest undue influence. On balance, however, the Court decided that there was insufficient evidence to validate the affidavit or admit the will to probate. 

In 2020, in Estate of Flarity, 2020 WL 5552140, the Court followed earlier guidance that the omission of a single phrase did not make a self-proving affidavit invalid, as it was in substantial compliance with statutory form. Therefore, considering the language of Section ​​251.104, the Court admitted a substantially compliant self-proved affidavit to probate. With the increased use of self-proving clauses in will executions in recent years, Texas’ substantial compliance provision for self-proved affidavits is helpful. However, this provision is still limited in its scope and the powers it grants the judiciary.

Scrivener’s Error: Harmless Error By Another Name?

A recent provision passed by the Texas Legislature in 2015, made effective in 2017, further complexifies Texas’ Estates Code. Section 255.451 (“Circumstances Under Which Will May Be Modified or Reformed”). It states:

(a) On the petition of a personal representative, a court may order that the terms of the will be modified or reformed, that the personal representative be directed or permitted to perform acts that are not authorized or that are prohibited by the terms of the will, or that the personal representative be prohibited from performing acts that are required by the terms of the will, if: 

(1) modification of administrative, nondispositive terms of the will is necessary or appropriate to prevent waste or impairment of the estate’s administration; (2) the order is necessary or appropriate to achieve the testator’s tax objectives or to qualify a distributee for government benefits and is not contrary to the testator’s intent; or (3) the order is necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.

The next section of the Code also provides, “The court shall exercise the court’s discretion to order a modification or reformation under this subchapter in the manner that conforms as nearly as possible to the probable intent of the testator.” These new sections are markedly different from the previous attitude espoused by Texas courts and legislation towards testamentary intent and statutory requirements. Though these sections are not explicitly in the way of “harmless error,” they invoke the same kind of terminology as provisions found in other jurisdictions concerned with balancing testamentary intent and formalism. They are also much closer to the harmless error than the substantial compliance doctrine.

In non-succession-related cases, Texas courts have previously defined scrivener’s errors. In Packard Transport, Inc. v. Dunkerly, No. 14-09-00652- CV, 2010, a Texas Court of Appeal defined a scrivener’s error in the context of a contract dispute relating to a promissory note as an “error resulting from a minor mistake or inadvertence, especially in writing.” To date, the only case to test and subsequently affirm the scrivener’s error provision is Odom v. Coleman, 615 S.W.3d 613, a 2020 case before the Court of Appeals. In Odom, the decedent’s attorney testified that he had mistakenly left the word “personal” before “property” in the testamentary dispositions listed in the decedent’s will after using a template, when it was clear to the decedent, his attorney, and witnesses that he intended to devise both his personal and real property to his heirs. The Court applied Section 255.451 EST to the will before probate in order to properly serve the decedent’s testamentary intentions.

This power only applies to petitions originating from personal representatives. Therefore, disgruntled beneficiaries who have been stricken from a will cannot petition the court to use this new power to give them more favorable gifts from the decedent’s will. Future jurisprudence will also continue to shape the bounds of what constitutes a scrivener’s error. This rule also explicitly overturns precedent set in San Antonio Area Foundation v. Lang, which held that “extrinsic evidence is not admissible to construe an unambiguous will provision.” This “reformation” provision will be an interesting new tool available to personal representatives and estate attorneys in the future.


Texas has a much more developed legislative history of will execution requirements and considerations than other states. This includes its code’s modified substantial compliance provision and the new “reformation” or scrivener’s error provision. It remains to be seen whether Texas courts will evolve in their conservative stance towards strict compliance, or whether these statutes—coupled with new jurisprudential and administrative considerations post-COVID-19—will see a shift in probate case law in the Lone Star State.

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