Homemade wills may save money upfront, but they often fail in probate and create costly problems for families.
The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
With the death of many prominent celebrities like Hulk Hogan and Gene Hackman, many of whom died without Wills, I thought I would present you with a “homemade” Will that I was asked to probate. The names have been changed to protect the individuals involved. The following is a rendition of the Will:
“I am writing my will myself, because the lawyer wants him to have too much money; he asks too many questions about the family. First thing I want I don’t want mine brother Oscar get a G D thing I got. He is a mumser; he did me out of forty dollars fourteen years ago.
I want it that my sister Hilda gets the North Sixty Akers of where I am homing it now, I bet she doesn’t get that gonoph husband of hers to break twenty acres next plowing. She can’t have it if she lets Oscar live on it; I want it back if she does.
Tell Mamma that the six hundred dollars she has been looking for ten years is buried from the backhouse, about ten feet down. She'd better let little Frederich do the digging and count it when he comes up.
Pastor Luchnitz can have three hundred dollars if he kisses the book. He won’t preach any more dumb talk about politics. He should have a roof put on the meeting house, and the elders should look at the bills.
Mamma should get the rest, but I want it so my brother Adolph can tell her what not to do so no more slick Irishers sell her vacuum cleaners. They make noise like hell, and a broom doesn’t cost so much.
I want it that my brother Adolph be my executor, and I want it that the judge please make Adolph plenty bond put up and watch him like hell. Adolph is a good businessman, but only a dumkopf would trust him with a busted pfennig.
I want dam sure that Schliemiel Oscar doesn’t get anything, tell Adolph he can have a hundred dollars if he proves the judge, Oscar doesn’t get anything. That's sure to fix Oscar.
Signed: Herman Oberweiss”
Probating Mr. Oberweiss’s “will”, unfortunately, was difficult if not impossible because it had several problems.
To be a valid Will in Texas, a Will must show testamentary intent. However, Mr. Oberweiss states in paragraph two of his Will that “if she lets Oscar live on it, I want I should have it back if she does.” This seems to indicate Mr. Oberweiss would still be alive.
Texas law also requires two witnesses to subscribe their names to the Will in the testator’s presence. Mr. Oberweiss’s will lacks the signature of any witnesses.
Another problem area for Mr. Oberweiss is his failure to adequately identify his heirs. Who are “Oscar”, “Hilda”, “Mamma”, “Little Frederich”, and “Adolph?” They appear to be family, but we do not have their last names, so identifying them is difficult. For example, while Mr. Oberweiss is familiar with who “Mamma” is, we do not know from the Will. Several “Mammas” could appear claiming to be the one referred to in the Will.
Mr. Oberweiss would like “Mamma” to get at least six hundred dollars, which she has been trying to find for ten years; however, we do not have an adequate description of where the money really is. It is apparently buried behind what Mr. Oberweiss calls the “backhouse,” but where is the backhouse?
Further, it is Mr. Oberweiss’ desire to get the “North Sixty Akers.” How do we know where the “North Sixty Akers” is? Apparently it is where he was “homing” at the time he wrote the Will. But what does “homing” mean? Where he lived is a good guess, but we really do not know that is what he meant. What if Mr. Oberweiss was no longer “homing” the property he refers to when he died? What then?
It is clear Mr. Oberweiss belonged to a congregation led by a “pastor.” While several denominations use this term, Mr. Oberweiss was obviously German and therefore would have probably been Lutheran or, possibly, Roman Catholic. But would a member of either denomination (or several others who use the term “pastor”) have referred to his church as a “meeting house?” Neither Lutherans nor Roman Catholics have “elders” at the congregational level. Presbyterians do, and, on occasion, a Presbyterian minister is addressed as “pastor.” But “meeting house?” The term is commonly associated with the Society of Friends, who have no “pastors.” Even more to the point, however, Mr. Oberweiss had a “pastor” and therefore could hardly have been Jewish. Yet don’t you wonder why a well-to-do farmer of German descent, living in East Texas, would use Yiddish words of execration when speaking of Oscar and Hilda’s husband?
I must confess Herman Oberweiss, nor his family, really exists. He was the creation of Will Sears. Mr. Sears was an attorney in Houston who created Herman Oberweiss’s will for a Law School Banquet. Mr. Sears passed away in December 1990. This was one of my father’s favorite articles, so I am dedicating this publication to O.J. Moak.
While Herman Oberweiss does not exist, this Will does afford me the opportunity to caution you on the hazards of writing your own Will using a form from the Internet or a Do-It-Yourself Will kit. You may save a few dollars, as did Herman, but in the long run, the goal of a Will is to make sure your last wishes are accomplished. Hiring an attorney to write your Will can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood. Spending a few dollars now will save your family and loved ones from spending more later. Not to mention the confusion and grief that will be avoided. THAT will damn sure fix Oscar.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com ©