In Texas, for a Will to be valid, the person must have legal capacity, testamentary capacity, and testamentary intent. A person has legal capacity if he or she is at least 18 years of age, has been lawfully married, or is a member of the United States armed forces. Testamentary capacity refers to being of “sound mind.” A person has testamentary capacity if her or she has the mental capacity to understand that he or she is making a Will, the effect of a Will, the nature and extent of his or her property, who the natural objects of his or her bounty (relatives) are, the fact that assets are disposed of through a Will, and has the ability to plan for an orderly disposition of his or her property. A person has testamentary intent if, at the moment the Will is signed, he or she has the intention to make a disposition of property that will take effect at death.
Additionally, certain formalities must be met in the actual documentation process of creating a Will. The State of Texas recognizes two types of Wills: (1) an attested will, and (2) a holographic will. Each of these documents has its own separate requirements. For an attested will to be valid, it must be in writing, signed by the testator or another person at the direction of the testator while in the testator’s presence, and witnessed by at least two witnesses over the age of fourteen. For a holographic will to be valid, it must be written completely in the testator’s own handwriting, and signed by the testator. It does not have to be signed by any witness.
In Texas, a person may also add a self-proving affidavit to the will. A self-proving affidavit substitutes for in-court testimony of witnesses regarding the validity of the will.