In Jones v. Jones, the decedent’s wife filed an application for probate of an attested will for her husband, and the decedent’s son from a previous marriage filed a petition contesting the will. No. 01-20-00073-CV, 2022 Tex. App. LEXIS 2019 (Tex. App.—Houston [1st Dist.] March 29, 2022, no pet. history). The trial court denied the application to probate the will, and the wife appealed.

The court of appeals noted that “Except as otherwise provided by law,” a will must be: (1) in writing; (2) signed by the testator in person; and (3) “attested by two or more credible witnesses who are least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.” Id. (citing Tex. Est. Code § 251.051). The court noted that the decedent did not sign the will, had a typed name in the signature portion, but that it was initialed by the decedent. The court stated:

“Texas courts have been lenient regarding the location and form of a ‘signature.'” A signature may be informal, and its location of secondary importance, if the maker intended his or her name or mark to constitute a signature expressing approval of the instrument as the maker’s will. The facts and circumstances surrounding the instrument’s execution may be considered in determining whether the maker intended a testamentary disposition of his property. Further, Texas courts have also explicitly held that a signature by initials is sufficient to execute a will, whether holographic or attested, if it is testamentary in character. “The key inquiry, however, remains whether the testator intended the mark to constitute an expression of his testamentary intent.”

Id. (internal citations omitted). The court concluded: “Considering this case law, we conclude that Wendell’s initials on pages one through six of his will are sufficient to satisfy Section 251.051’s signature requirement, just as any other mark made by him would be, so long as he ‘intended the mark to constitute an expression of his testamentary intent.’” Id.

The court also concluded that there was evidence of testamentary intent: “We acknowledge that it is undisputed that the 1995 will does not contain Wendell’s handwritten signature on the signature page. But as we have concluded, the presence of Wendell’s initials constitutes his signature on the 1995 will, so long as he made them with the requisite testamentary intent. Therefore, the lack of a handwritten signature on the last page of the will does not impact our analysis of his intent.” Id. The court finally held that the will was property attested: “[B]y testifying that that they each saw Wendell initial the will, Onvani and Woolsey attested to Wendell’s “signature” and that Wendell “in fact executed the document that they are signing” as witnesses. We conclude that there is legally insufficient evidence to support the trial court’s finding that the purported will “was never signed by the Decedent” and “the purported witnesses could not have seen him sign that which they purportedly attest to.” Id.

Photo of David Fowler Johnson David Fowler Johnson

dfjohnson@winstead.com
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

dfjohnson@winstead.com
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law