Will Contest

Because a last will and testament is designed to reflect the true wishes of the testator, Texas law has safeguards to prevent a fraudulent will from being probated. Texas Estates Codes provides rules for how a will must be executed. Tex. Est. Code § 251.051. If someone feels that a will submitted to the probate court is not valid either because of how it was executed or because of the circumstances surrounding the making of the will, they can initiate a will contest. A will contest is a type of probate litigation during which the probate court judge is asked to decide whether or not a will should be probated.

Who Can Contest It Will

Under Texas law, any interested person may contest a will. Tex. Est. Code § 55.001. “Interested person” is defined as those who have a pecuniary or justiciable interest that would be impacted by the probate of the will. That would include beneficiaries, heirs, and beneficiaries of a prior will. Valdez v. Robertson, NO. 01-14-00563-CV, 8 (Tex. App. Apr. 26, 2016)

Procedure for Contesting a Will

To initiate a will contest, the person objecting must file a petition that states the grounds for objecting. An objection to a will can be initiated before or after the will has been admitted to probate. In fact, a will can be contested up to 2 years after it was admitted to probate. If the judge decides there is evidence to support a contest, the case will go to trial.

Grounds for Contesting a Will

The law does not allow an objectant to contest a will simply because they are not happy with its terms. The testator must state legally acceptable grounds for the challenge. Legally acceptable reasons include:

  • The testator did not have the mental capacity. Texas law requires that a testator must have been mentally competent at the time that they executed the will. Evidence of lack of mental capacity can include evidence of dementia, drug use, a stroke, bipolar disorder, or schizophrenia.
  • The testator did not have the legal capacity. The testator must have been at least 18 years old. If the testator had not yet reached the age of 18, they must have been married or had been married or have been a member of the armed forces at the time they executed the will. Tex. Est. Code § 251.001
  • The testator was under undue influence. Undue influence occurs when a testator who is ill, isolated, or is otherwise vulnerable is illegally influenced by an opportunistic person into making an “unnatural” will that they would not have otherwise made.
  • The will was improperly executed. Texas law spells out specific requirements related to how a will must be created and executed. Otherwise, it will not be deemed valid. For example, the will must in writing and signed by both the testator and 2 witnesses. The witnesses must be at least 14 years old. Tex. Est. Code § 251.051
  • Duress. Duress is present if the circumstances surrounding the making of the will included threats or some other wrongful action that coerced the testator.

Consequences of a Will Contest

If an objectant is successful and the court finds that the will is not valid, the court will not probate that will. Instead, the court will probate a prior or later valid will. If no valid will exists, then the court will declare the decedent to be intestate. As a result, as describe in the law of intestate succession, the decedent’s next of kin will be entitled to the decedent’s estate. Tex. Est. Code § 201.001 et seq. If the decedent did not have any known close relatives, an heirship hearing may be necessary to determine who is entitled to inherit.

Forfeiture Clause

A “forfeiture clause” which is also referred to as an “in terrorem clause” is a provision in a will that voids a testamentary gift if the beneficiary contests the will. Texas law specifically states that forfeiture clauses are enforceable unless there was just cause for challenging the will and the challenge was brought and maintained in good faith. Tex. Est. Code § 254.005

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