1. TO: Dale Desnoyers
FROM: Deanna Fraser
DATE: April 01, 2015
RE: Eakins v. Biglin- Probate of holographic will
QUESTION PRESENTED
Using statutory law, concerning requisites of a will and exclusions referring to the holographic
wills, Tex. Prob. Code. Ann. §59, and Tex. Prob. Code. Ann. §60, is a holographic will valid
when, the handwriting is both by Mr. Eakins and typewritten, when the will is signed by Mr.
Eakins but no witnesses were there to witness the writing and signing, and there is a valid self-
proving affidavit?
SHORT ANSWER
Under New York State law: Estates, Powers and Trusts Law § 3-2.1, no the statute requirements
in this case of the holographic will was not met. However, the will was solely handwritten by
Mr. Eakins, which is required under this statue. The self-proving affidavit does make a
difference in this case because no witness signed the will with Mr. Eakins and that is required for
self-proving affidavit. According to Estates, Powers and Trusts Law § 3-2.1, it states “There
shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the
testator's signature, as affixed or acknowledged in their presence, and at the request of the
testator sign their names and affix their residence addresses at the end of the will…”. Meaning

2. there had to be at least two witnesses to sign off the will with Mr. Eakins, making the will
invalid.
STATEMENT OF FACTS
Tammy Eakins, widow of Thomas Eakins, requests to challenge the probate of the holographic
will of her husband, Thomas Eakins. The sister of Thomas Eakins and the personal
representative of his estate, Betty Biglin, have submitted for probate a holographic will be
arranged by Mr. Eakins.
Mr. Eakins handwritten the first half of his will and the second half was typed by his next-door
neighbor, Gary Gross. Dr. Gross has stated that Mr. Eakins had asked him to type the will for
him since he was too weak to continue writing it himself. The will was signed by Mr. Eakins
afterwards. There wasn’t any witness to the typing/writing of the will, but it included a self-
proving affidavit that meets the requirements of the statue at hand.
ANALYSIS
The rule of law governing the requisites of wills is Texas Probate Code section 59, which states,
“Every last will and testament…shall be in writing…, and shall, if not wholly in the handwriting
of the testator, be attested by two or more credible witnesses…” Tex. Prob. Code. Ann. §59. This
law clearly sets out that a will must have witnesses when not written solely by the testator, Mr.
Eakins’.
The law pertaining exclusions concerning to holographic wills is Texas Probate Code section 60,
which states, “Where the will is written wholly in the handwriting of the testator, the attestation
of the subscribing witnesses may be dispensed with…” Tex. Prob. Code. Ann. §60. This statute

3. clearly states the requirements for this exception to the requirement of witnesses to a will. The
court makes this more understandable in the case of Dean v. Dickey, 225 S.W.2d 999 (Tex. Civ.
App. 1949).
In Dean v. Dickey 225 S.W.2d 999 (Tex. Civ. App. 1949), the issue raised was if a will typed
solely by a testator to be the testator’s last will, and was also signed by the testator and his or her
witness(es), was valid for probate as a holographic will. The court ruled that the will was invalid
for probate, because within the context of the statute, “wholly written in the handwriting of the
testator” makes the will not fit the part of the law. In the case of Dean v. Dickey, it establishes
that a will must be handwritten, when the situation requests for it under the law.
The rule of law defined by Dean v. Dickey is able to be applied to numerous similar situations.
Like this case, the will in question was typed, intended to be the last will of the testator, and was
also signed by the testator. Unlike the case however, the will was solely typed, and also was
signed by one witness. In this case, the context of the statute requires that a will not solely
written by the testator be signed by two valid witnesses. Under the law, the will does not appear
valid in this case for probate.
The statute requirements can undeniably be examined. The testator’s, Mr. Eakins’, will is not
only in the testator’s handwriting, half of it is typed by his neighbor, Gary Gross. Therefore
under the Texas Probate Code, the will needs to have two witnesses to be valid. In this case, the
will was unsuccessful because it failed to provide two valid witnesses, and therefore is invalid.
The testator had the intentions of following the requirements of a will, but since he was ill the
requirements weren’t fully met. This can easily be proven by the self-proving affidavit.
The court may consider that this will was made in good faith, and may therefore be found valid.

4. COUNTERANALYSIS
Possible counterarguments may be raised on the lack of facts. It is possible, but not likely, that
there was a second witness, but they didn’t get the opportunity to sign the will. It is also possible
that the testator, Mr. Eakins didn’t want the will to go through and that the neighbor, Mr. Gross,
just decided to type what he wanted in the will for his benefit; same as for his wife, Tammy
Eakins. We don’t know any ones’ objectives when it came to the will; every ones looking out for
themselves at this point. Mr. Gross could have been the one to type the other half of the will, but
how do we know for guarantee that he did? They could have just said that he did and it all could
have been Mr. Eakins. We need to determine her reasoning for challenge the probate of the
holographic will of her husband, Thomas Eakins because we don’t know the basics of their
relationship and how stable their partnership was. Maybe Mr. Eakins’ didn’t want her in his will
because their marriage was on the rocks. Case law needs to be researched to determine if the
request to challenge the probate of the holographic will requirement of the statue may be
established by the conduct that took place after the will was submitted.
CONCLUSION
Section 59, of the Texas Probate Code clearly lists the requirements of a will. A will that is not
completely in the handwriting of the testator, must be signed by two valid witnesses. The case of
Dean v. Dickey states that the term writing, under the law, must be taken within the meaning of
the statute. In this case, the will of the testator, Mr. Eakins, was not solely handwritten, but half
of it is typewritten by the neighbor Mr. Gross. The will therefore, is required to have the
signatures of two witnesses and it wasn’t. Section 60, of the Texas Probate Code allows for an
exception in regard to holographic wills. In the case of a holographic will, when the will is solely

5. in the handwriting of the testator the requirement of witnesses is not required. In this case, the
testator’s will is half typewritten. This exception cannot apply to this case, and the will is still
required to have two witnesses; without the signature of two witnesses, the will is therefore
invalid in our case.