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 a 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 probate attorneys so we can review the details of the will and begin the necessary initial steps towards legal action

Grounds For Contesting a Will in Texas

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 only a few reasons why a will can be contested. These specific 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

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

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 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

Texas law sets specific requirements for the valid execution of a will. Contesting a will on this ground argues that the will was not properly executed in accordance with these legal requirements. Contestants must show that the will was not signed in the presence of witnesses or that it didn’t meet other formalities as required by law.

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.

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 is 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

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. Fraud and 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).

Contesting a will based on fraud asserts that the testator was deceived or tricked into signing a will that didn’t reflect their true intentions. Contestants must demonstrate that the testator would not have created the will if they had known the true facts. Evidence of fraudulent misrepresentation or concealment is crucial in these cases.

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.

Key Steps to Contest a Will in Texas

Step 1: Consultation with an Attorney

Before embarking on the legal journey of contesting a will, it is important to seek legal guidance from an experienced attorney who specializes in probate litigation. This section will outline the initial steps involved in consulting with an attorney, including choosing the right attorney and conducting an initial case evaluation.

Choosing the Right Attorney

Selecting the right attorney is a pivotal decision as they will play a significant role in navigating the complexities of the will contest process. When choosing an attorney, consider the following factors:

  • Experience and Expertise: Look for an attorney who specializes in probate litigation and has substantial experience handling will contests. Their expertise in this area of law can greatly benefit the success of your case.
  • Reputation and Track Record: Research the attorney’s reputation and track record. Look for testimonials, reviews, or references from previous clients to gain insight into their professional capabilities and client satisfaction.
  • Compatibility and Communication: It is essential to choose an attorney with whom you feel comfortable and can communicate effectively. A strong attorney-client relationship based on trust and clear communication is key to a successful will contest.

Initial Case Evaluation

During the initial consultation with your chosen attorney, they will conduct a comprehensive evaluation of your case. This evaluation may involve:

  • Reviewing Relevant Documents: The attorney will examine the relevant documents, such as the will and any supporting evidence, to assess the strength of your case.
  • Gathering Information: You will be asked to provide information about your relationship with the decedent, your reasons for contesting the will, and any supporting evidence or witnesses you may have.
  • Legal Analysis: The attorney will analyze the legal aspects of your case, including the applicable laws, precedents, and potential challenges or obstacles.

Based on this evaluation, your attorney will provide you with an informed assessment of the merits of your case and discuss potential legal strategies moving forward.

Step 2: Filing a Lawsuit

If the initial case evaluation indicates that you have valid grounds for contesting the will, the next step involves initiating a lawsuit. This section will outline the key elements of filing a will contest, including initiating the lawsuit and determining jurisdiction and venue.

Initiating the Will Contest

To initiate a will contest, your attorney will draft and file a complaint or petition with the appropriate court. The complaint will outline your legal arguments, the specific grounds for contesting the will, and a request for relief or remedy.

Jurisdiction and Venue

Determining the jurisdiction and venue is crucial in filing a will contest. Generally, the lawsuit should be filed in the probate court of the county where the decedent resided at the time of their death. Your attorney will ensure that the lawsuit is filed in the proper jurisdiction and venue to comply with the applicable laws and court procedures.

Step 3: Discovery

Once a will contest lawsuit is initiated, the next step is the discovery process. This section will explore the different aspects of discovery, including gathering evidence and conducting depositions and interrogatories.

Gathering Evidence

During the discovery phase, both parties involved in the will contest have the opportunity to gather evidence to support their respective claims. This may involve:

  • Document Requests: Each party can request relevant documents from the other party, such as the will, financial records, medical records, and any other evidence that may be pertinent to the case.
  • Witness Interviews: Attorneys may conduct interviews with potential witnesses to gather information and obtain statements that can support their client’s position.
  • Expert Witnesses: In some cases, expert witnesses may be called upon to provide specialized knowledge or opinions related to the contested issues in the will.

Depositions and Interrogatories

Depositions and interrogatories are formal processes that allow attorneys to obtain sworn testimony from witnesses involved in the will contest.

  • Depositions: During a deposition, witnesses are questioned under oath by opposing counsel, and their responses are recorded. Depositions can help uncover valuable information, clarify facts, and assess the credibility of witnesses.
  • Interrogatories: Interrogatories are written questions that one party sends to the other, requiring them to provide written responses under oath. Interrogatories allow each side to obtain specific information from the other party to strengthen their case.

These discovery methods enable attorneys to gather information, evaluate witness testimonies, and identify any weaknesses or inconsistencies in the opposing party’s claims.

Step 4: Pre-Trial Motions and Settlement Negotiations

As the will contest progresses, the parties involved may engage in pre-trial motions and settlement negotiations. This section will explore the importance of these steps in the litigation process.

Summary Judgment Motions

Either party may file a summary judgment motion, requesting the court to rule in their favor without proceeding to trial. This motion argues that there is no genuine dispute as to the material facts of the case and that the party is entitled to judgment as a matter of law. If granted, a summary judgment can expedite the resolution of the will contest.

Potential Settlement Options

In some cases, the parties involved may consider settling the will contest prior to trial. Settlement negotiations involve discussions between the parties, with the assistance of their attorneys, to reach a mutually agreed-upon resolution. Settlement options may include modifications to the will, distribution of assets, or other compromise agreements.

Settlement negotiations can provide a quicker and more cost-effective resolution to the dispute, allowing the parties to avoid the uncertainties and expenses associated with a trial.

It’s important to note that while settlement negotiations can be beneficial, they are entirely voluntary, and all parties must agree to the terms for a settlement to be reached.

Step 5: Will Contest Trial

Once the discovery process is completed, the will contest proceeds to trial. This section will cover the key elements of the trial process, including preparing for trial, the presentation of evidence, witness testimony, and the decision between a jury or bench trial.

Preparing for Trial

Preparing for trial is crucial to ensure a strong and effective presentation of your case. During this phase, attorneys engage in various activities, such as:

  • Reviewing and Organizing Evidence: Attorneys thoroughly review all gathered evidence, organize it in a logical and persuasive manner, and determine which pieces are most relevant to present at trial.
  • Crafting Legal Arguments: Attorneys develop compelling legal arguments to support their client’s position and anticipate potential counterarguments from the opposing side.
  • Witness Preparation: Attorneys prepare their witnesses for trial by conducting mock examinations, ensuring they are well-prepared to provide clear and convincing testimony in court.

Presentation of Evidence

During the trial, both parties have the opportunity to present their evidence to the court. Both parties must adhere to the rules of evidence and procedure set forth by the court to ensure a fair and orderly trial. This evidence includes:

  • Exhibits: Attorneys introduce physical evidence, such as documents, photographs, or other tangible items, to support their arguments.
  • Testimony: Witnesses are called to testify under oath to provide firsthand accounts or expert opinions on the matters at hand.

Witness Testimony

Witness testimony plays a pivotal role in the trial process. Witnesses, including lay witnesses and expert witnesses, may be called to provide factual information, offer opinions, or corroborate or refute claims made by either party.

Attorneys examine their witnesses through direct examination to elicit favorable testimony and cross-examine opposing witnesses to challenge their credibility or highlight inconsistencies in their statements.

Jury or Bench Trial

At the start of the trial, the parties must decide whether they want their case to be heard by a jury or a judge (bench trial).

  • Jury Trial: In a jury trial, a panel of impartial individuals is selected from the community to hear the case, assess the evidence presented, and deliver a verdict based on the law provided by the judge.
  • Bench Trial: In a bench trial, the judge serves as the fact-finder, evaluating the evidence, applying the law, and issuing a verdict based on their assessment of the case.

The decision between a jury or bench trial depends on various factors, including the nature of the case, the complexity of legal issues involved, and the preferences of the parties involved.

Step 6: Verdict and Post-Trial Options

After the trial concludes, a verdict is reached, and the court delivers its decision. This section will explore the court’s decision and the available post-trial options.

The Court’s Decision

The court’s decision in a will contest trial can go in favor of either party. The judge or jury carefully considers the evidence presented, analyzes the legal arguments, and reaches a determination on the validity of the will or the disputed issues.

The court’s decision may include various outcomes, such as upholding the validity of the will, declaring it invalid, modifying the terms, or providing other relief as deemed appropriate under the circumstances.


If any party disagrees with the court’s decision, they have the option to appeal the verdict. An appeal involves requesting a higher court to review the trial court’s decision based on legal errors or other grounds specified by the applicable laws.

During the appellate process, the higher court reviews the trial record, hears legal arguments, and determines whether there were any errors that impacted the outcome of the case. The appellate court may affirm the lower court’s decision, reverse it, or order a new trial.

Appeals provide an avenue for parties to seek a reconsideration of the trial court’s decision and potentially obtain a different outcome.

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 and Forbes can help. 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.

*This article has been updated with new information

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