221 N. Kansas St., Ste 700
Scheduling Open
Phone Number
Free Consultation

What Presumptions Do Probate Courts Make Regarding Language in a Will?

In Texas, as in other states, a testator – the person who made the will – must be of “sound mind” to make a valid will. This means that the testator must understand that he or she is making a will, knows the natural objects of his or her bounty, and understand the disposition he or she is making. The testator must also be aware of the consequences of making (or not making) a particular disposition. If you have questions about whether a will is valid, or if you would like to contest a will, contact an experienced probate litigation attorney in your area.

What is Probate?

When a person dies, their estate must go through probate. Probate is the legal process of transferring a person’s assets to their beneficiaries. The court will appoint an executor to oversee the probate process. The executor is responsible for gathering the deceased person’s assets, paying their debts, and distributing their assets to their beneficiaries.

The probate process can be complex and time-consuming. The Texas Estates Code contains many rules and regulations that the executor must follow. One of the most important aspects of the probate process is interpreting the language in a will.

The Texas Estates Code presumes that when a person uses certain language in their will, they have a specific meaning in mind. For example, the use of the word “heirs” in a will presumption means that the person intends for their assets to be distributed to their descendants. The use of the word “child” presumes that the person intends for their assets to be distributed to their biological or adopted child.

It is important to note that these presumptions are just that – presumptions. They are not hard and fast rules. The court can consider other evidence when interpreting a will. However, these presumptions provide guidance to courts when they are confronted with ambiguous language in a will.

The Texas Probate Process

The Texas Estates Code establishes a set of rules that a court must follow when determining the validity of a will. The court must presume that the will is valid unless there is clear and convincing evidence to the contrary. The court must also presume that the testator (person who made the will) intended the terms of the will to be carried out according to their plain meaning.

There are two types of probate in Texas: independent and dependent. Independent probate is used when there is no dispute as to the validity of the will or the identity of the rightful heirs. Dependent probate is used when there is a dispute, or when someone contests the will.

The probate process begins with filing a petition with the court. The petitioner must be an heir or devisee (person named in the will) of the deceased person. The petition must state whether it is an independent or dependent proceeding, and it must include a copy of the will, if one exists.

If there is no will, or if the will cannot be found, then the estate will be distributed according to Texas law of intestacy. Intestate succession depends on relationships by blood or marriage between the deceased person and his or her heirs. For example, a surviving spouse would inherit all of the deceased spouse’s property if there are no children; if there are children, then the surviving spouse would inherit one-third to one-half of the estate, depending on how many children there

What Happens if There is No Will?

If there is no will, the intestate succession laws of the state of Texas will determine who receives the decedent’s property. The laws are designed to distribute the property in a way that is fair and reasonable, taking into account the relationships of the people involved.

The intestate succession laws of Texas give the following order of priority for distributing a decedent’s property:

1) The surviving spouse

2) The children of the decedent

3) The grandchildren of the decedent

4) The parents of the decedent

5) The siblings of the decedent

6) The cousins of the decedent

How to Prove a Will is Valid in Texas

There are four primary ways to prove the validity of a will in Texas:

  • The will must be in writing and signed by the testator (the person who made the will) in the presence of two witnesses.
  • The witnesses must sign the will in the presence of the testator.
  • The will must be notarized.
  • The will must be filed with the court.

If you are unable to meet any of these requirements, you may still be able to prove the validity of your will through circumstantial evidence, such as:

  1. The testator told others that the document was their will.
  2. The testator had previously executed other wills or testamentary documents.
  3. The witnesses were disinterested parties who had no reason to lie about their involvement with the will.
  4. The will was found in the testator’s possession after their death.

Presumptions Regarding Language in a Will

When a testator, or the person who made the will, uses certain language in their will, the court presumes they had a specific meaning in mind. For example, if the will refers to the testator’s “children,” the court presumes that the testator meant their biological or legally adopted children, not step-children. Other presumptions regarding language in a will include:

  • If real property is bequeathed to more than one heir, the court presumes that the testator intended for the property to be divided equally among them.
  • If personal property is bequeathed to more than one heir, the court presumes that the testator intended for each heir to receive a specific item. For example, if a will states that “my son John shall receive my watch,” the court presumes that John is only entitled to receive the watch and not any other items of personal property.
  • If two or more individuals are appointed as executors of a will, the court presumes that they are to serve jointly and not independently.

What Happens if the Testator Revokes the Will?

There are a few different ways that a testator can revoke their will in Texas. The first way is by physically destroying the will, either by tearing it up or burning it. The second way is by making a new will that revokes all previous wills. The third way is by making a written revocation that specifically revokes the previous will.

If the testator revokes their will, then the estate will be distributed according to the laws of intestate succession. This means that the assets of the estate will be distributed to the testator’s spouse and children, if they have any. If the testator does not have any surviving spouse or children, then the assets of the estate will be distributed to their parents or other relatives.

Texas Case Law

In Texas, probate courts make a number of presumptions regarding language in a will. For example, they presume that if a will refers to real property, the property is located in Texas. They also presume that if a testator uses the term “heirs,” they mean natural heirs, and not devisees.

These presumptions can be rebutted by evidence to the contrary. For example, if a testator refers to property located in another state, the court may conclude that the testator did not intend for the presumption to apply.

The court may also consider extrinsic evidence when construing a will. Extrinsic evidence can include things like prior wills, statements made by the testator, or testimony from witnesses. This evidence can be used to help determine the testator’s intent when they wrote the will.

Martin v. Palmer

1 S.W.3d 875 (Tex. App. – Houston [1st Dist.] 1999, pet. denied)

Facts & Procedural History

Mrs. Pogue passed away in 1989, after which her estate passed to Mr. Pogue (Decedent), who survived her. Until Decedent’s death in 1993, Decedent spent considerable time with both his and his wife’s nephews and nieces. Mrs. Pogue’s nephew, Newman F. Baker, filed an application for the probate of Testator’s will.  In this application, Mr. Baker identified the nieces and nephews of Mrs. Pogue as well Decedent’s biological nieces and nephews as beneficiaries of the testator’s estate. Testator’s will was admitted to probate in December of 1994. Decedent’s biological nieces and nephews (Appellees) initiated a declaratory judgment action to obtain the court’s declaration that, as a matter of law, Testator’s use of the phrase “my nieces and nephews” referred only to the children of Testator’s brothers and sisters. Despite Appellants’ argument that this phrase had multiple meanings, the Probate Court granted Appellees’ motion for summary judgment.

Appellants appealed, and the Court of Appeals reversed and remanded the Probate Court’s judgment. The Court of Appeals held that: (1) the phrase “my nieces and nephews” was not so clear that a testator’s external factors should be disregarded; and (2) that the motion for summary judgment should not have been granted. To explain further, genuine issues of material fact existed as to whether Decedent meant to include Mrs. Pogue’s nieces and nephews in his will. The Court of Appeals concluded that the phrase “my nieces and nephews” did not have such a clear, definite, and technical meaning that it had only one legal interpretation in every will construction case. Based on the circumstantial evidence, it could be inferred that the Pogues both intended to pass their estates to their nieces and nephews (without regard to whether they were related by blood or through marriage). 

Main Considerations

What is required for summary judgment to be granted?

In order for a motion for summary judgment to be granted, the proponent of summary judgment must be able to show that: (1) no issues of material fact exist; and (2) that they are entitled to summary judgment as a matter of law.

What are some presumptions surrounding wills?

When a testator executes a will using terms that express his or her intentions in the disposition of their estate, courts have a duty to enforce those terms (unless context of the will shows a clear contrary intention). If the terms do not have a clear, definite, or technical meaning, courts can consider extrinsic evidence to uncover the meaning that the testator intended. However, extrinsic evidence is inadmissible to show that a testator intended to say something other than that which is clearly stated in his will.

The Takeaway

Martin v. Palmer shows that: (1) the granting of a summary judgment motion is improper where genuine confusion exists regarding a testator’s intentions in their will; and (2) the phrase “my nieces and nephews” does not have one sole meaning.


It is important to be aware of the presumptions that Texas probate courts make in regards to language in a will. This can help you ensure that your will is interpreted correctly and that your wishes are carried out. If you have any questions about how your will might be interpreted, it is always best to consult with an experienced estate planning attorney who can advise you on the best course of action.

Do you need an Experienced Probate Attorney to help?

In Texas, if a will is executed in another language, the court will presume that the testator (person who made the will) intended for it to be their valid will if it is proved by a preponderance of the evidence. However, this presumption can be rebutted by clear and convincing evidence showing that the testator did not understand the nature or consequences of making a will in another language. If there is no such evidence, then the court will probate the will as written.

If you are facing probate proceedings in Texas and your will was executed in another language, it is important to have an experienced probate attorney on your side who can help prove your case and ensure that your rights are protected.

Call us today for a FREE attorney consultation. (915) 292-4400.

Related Posts