Blinked Will

Recently, a Texas court found a Will to be valid where the decedent did not personally sign the Will and was only able to communicate his wishes for the provisions of the Will by blinking his eyes. In Estate of Luce, the decedent was involved in a serious accident, leaving him a quadriplegic and unable to speak. He was only able to communicate by blinking his eyes to answer “yes” or “no”.  An attorney visited the decedent in the hospital, and through the decedent’s blinking system, the attorney and the decedent formed an attorney-client relationship.  Furthermore, the decedent’s attorney was able to draft a Will for the testator based on the testator’s blinked responses to the attorney’s leading questions.  A notary signed the Will on the behalf of the decedent in his presence.

The decedent was going through a contested divorce at the time of his accident, so he left his wife out of the “blinked Will”.  The decedent’s sister offered the “blinked Will” for probate.  Not surprising, the decedent’s wife contested the Will, alleging that the Will was not duly executed, and the decedent lacked testamentary capacity and was unduly influenced by the sister to execute the Will.

The evidence showed that all of the requirements for a valid Will were met and that the decedent possessed testamentary capacity, as his medical records showed he suffered no brain injuries as a result of the accident.  The evidence further showed that the sister only had the opportunity to exert an influence on the decedent, and there was no evidence of exertion of an influence.  For those reasons, the court of appeals affirmed the admission of the “blinked Will” to probate.

While the law may protect a significantly disabled individual’s ability to draft a Will, it is preferable have your estate planning documents in place as soon as practicable to account for such unthinkable situations.

See Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577 (Tex. App.—Fort Worth 2018).