The Steps to Contest a Will in Texas

Imagine your surprise when a parent or close loved one dies and, in their will, they have mysteriously left everything to a random person that you and your family barely know. Can the will be contested and ultimately proven invalid if you believe this to be a mistake or an intentional act of fraud?

No one can ever contest a will because they simply do not like the will’s overall terms, but there are four distinct legal reasons that can lead to valid will contest. 

It’s important to understand just how complicated these types of legal proceedings are, which is where our firm steps in to ensure that your loved ones will is justifiably appropriated. If you firmly believe there is something awry with your family member’s will, then you should not hesitate to contact our team of probate attorneys so we can review the details of the will and begin the necessary initial steps towards legal action.

Why a Will Can Be Contested

How a Will Can Be Contested

It’s 100% true that wills can be contested, but it’s always going to entail lengthy and costly probate proceedings. This is part of the reason why we caution our clients to only undertake a will contest if they truly believe something has gone seriously wrong. 

It’s also very important for those thinking about contesting a will in Texas to first and foremost understand the Statutes of Limitations that apply, which states that a will must be contested within 2 years from the date that the will is offered for probate and an executor is appointed.

In Texas, there are generally four reasons why a will can be contested. These four reasons are paramount to having a successful case in these types of complicated legal situations, and they include the following:

1. Lack of Testamentary Capacity

Lack of Testamentary Capacity

“Testamentary capacity” refers to the legal concept that the writer of a will (the testator) may not have understood the overall value of their assets and who should logically inherit their assets. This can also refer to an individual not understanding the legal ramifications of signing a will due to a lack of mental capacity. They may not have realized that the document they were signing was indeed a will, or that the terms may have been changed to award property to those who were not meant to receive it in the first place.

In these cases, a lack of testamentary capacity can be alleged by those who are contesting the will to show that the testator did something contrary to their own interests, and the threshold that must be overcome in order to prove a lack of testamentary capacity is dictated by state laws and typically isn’t too high of a bar. 

Contesting parties must show that the will was written or signed at a point where the testator did not understand what they were doing, and must also demonstrate that the will would have been different had the testator been of sound mind.

The testimonies of witnesses of the will signing will always play a crucial role when a lack of testamentary capacity is the focus of a will contest, but this is partly why lack of testamentary capacity is so difficult to prove. A testator may seem to understand what they’re doing at a will signing, but they may also be showing signs of dementia and experiencing slips of memory and mind.

2. Undue Influence

Undue Influence

Elderly people tend to become weaker in a variety of ways, and this many times makes them more susceptible to being influenced by other people who may not have their best interests in mind.

Undue influence occurs when a third party attempts to persuade the testator to do something they would not naturally want to do by means of blackmail, extortion or behavior such as manipulation. For example, an older testator may have been pressured by a caretaker to change their will to benefit the caretaker under the threat of withholding necessary treatment.

In order to contest a will under the grounds of undue influence in a Texas probate court, a distinguished burden of proof of the contesting parties must be met. This includes proving by a preponderance of the credible evidence that an individual worked to pressure, manipulate or coerce the testator into making changes to the will that overpowered their natural choice and would not have been made without the influence of the third party.

This means that the alleged influencer in fact exerted extreme pressure by putting the testator under duress to succumb to their influence. Verbal abuse, nagging, conniving legal advice, or any type of threat may not be enough to fully establish undue influence. It’s typically necessary to thoroughly review the provisions of the will, the estate planning, the paying of the will and any isolation of the testator from his/her family. 

But no matter what undue influence is also very difficult to prove, which is why it’s always necessary to collaborate with an experienced law firm that is fully knowledgeable of Texas probate court and probate litigation.

3. Due Execution

In order for a will to be valid in Texas, the Will must be: 

  1. in writing 
  2. signed by (a) a testator in person or (b) another on behalf of the testator 
    1. (i)in the testator’s presence 
    2. (ii) under the testator’s direction and finally 
  3. it must be attested to by two or more credible witnesses who are at least 14 years old and who sign their names to the will in their own handwriting in the testator’s presence.
  4. There are some exceptions to the above 3 rules, which will not be discussed here, but as a general rule if one follows the above rules, one would have a valid will.

In Texas, holographic (handwritten) wills may be accepted in some cases, but in general, a will can be contested if it lacks essential elements of a valid will. A holographic will is a will that is written wholly in the testator’s handwriting. Subscribing witnesses are not necessary for a holographic will.

It may be easy to simply assume that any will that’s signed with the help of an estate lawyer will abide by every legal formality, but this simply is not always the case. The lack of due execution and accordance with Texas Estates Code is one of the main reasons why a will is contested and deemed invalid.

4. Legal Non-compliance

Legal Non-compliance

Because a will is a legal document, they are subject to laws and requirements in specifics in how they are to be drafted, handled and executed. If this is absent from the will, then part or all of it may be thrown out upon further investigation.

If you believe that a will left by a loved one is noncompliant with Texas law, an experienced Texas probate attorney can help you determine the legal grounds to challenge a will.

5. Forgery

It’s generally necessary to utilize the testimony of a handwriting expert when contesting a will based upon forgery. This will usually require obtaining many different examples of the testator’s signature and having the handwriting expert come to a thorough analysis of the will’s signature(s).

Who Can Contest a Will?

Who Can Contest a Will?

A person interested in an estate may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue. An “interested person” means an heir, devisee, spouse, creditor or any others having a property right in or claim against an estate being administered. According to Texas law, an individual who contests a will is allowed to submit evidence and call witnesses and to be heard on the opposition, as in other suits, as necessary in order to make their case.

Contact an Experienced Probate Attorney

Contact an Experienced Probate Attorney

If you wish to contest a will, it is best to do so as soon as possible after the probate process begins. An “interested person” may commence a suit to contest the validity of a Will not later than the second anniversary of the date the will was admitted to probate, except that an “interested person” may commence a suit to cancel a will for forgery or other fraud not later than the second anniversary of the date the forgery or fraud was discovered.

Contesting a will is a complex legal endeavor that will require time, energy, and money in order to do so successfully. Forbes & Forbes can help. For more information about the probate process, please see our Texas probate guide. If you believe you need to contest a will or wish to discuss a claim with an experienced probate attorney, contact us today to schedule a free consultation.

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