Contesting a Will


A Last Will and Testament documents a deceased person's directions for his or her estate, giving instructions as to who will receive specific bequests and who will receive the residual assets. Unfortunately, if one person is not happy with what he or she received or felt left out completely, a will may add more stress to an already emotional situation. If this happens, it is possible for someone to contest the will, or petition the court to declare the will invalid. However, anyone contesting a will must present solid evidence supporting their beliefs that the will should be nullified.

Only those with legal standing or considered an interested party may contest a will. You have legal standing if:

  • You are a beneficiary in the current will;
  • You were a beneficiary in a prior will;
  • You are the beneficiary of a newer will made after the one in question; or
  • You would be an heir if there is no will and intestacy law applies (Texas intestacy laws include spouses, children, possibly parents, siblings and other relatives, depending on the family tree.).

It's a good idea to hire an estate planning lawyer before you go on. Some testators, or persons creating the will, add codicils stipulating anyone attempting to contest the will may jeopardize losing their portion of the inheritance completely. A lawyer can make sure there are no such “traps.”

Once the will has been filed to probate, the interested party has two years to file a “will contest,” challenging the will's validity and providing reasons why they believe the will is invalid. Sometimes finding the proof to support those reasons can get complicated. A lawyer can help you prepare the proof you'll need.

There are four reasons why a will may be challenged:

Lack of Testamentary Capacity -This refers to a person's mental ability to create or make changes to a valid will. The challenger must prove:

  • The testator didn't know he or she was signing a will;
  • The testator didn't understand what he or she was signing away;
  • The testator didn't understand who would get the property; and
  • The signing would've gone against the testator's wishes.

The interested party must prove that the testator would not have signed this document if he or she had been in his or her right mind or was perhaps suffering from dementia, mental illness, or a severe medical illness.

Undue Influence – This is when a person, usually a relative, close friend, or health care provider, exploits the testator's vulnerability. That person restricts the amount of time the testator may see his or her family or friends, and eventually manipulates the testator into alternating the will into his or her favor. Because the testator is not present to question, the will contestant must rely on such things as:

  • The relationship between the caregiver and the testator;
  • The motive, character, and conduct of those benefiting from the will; and
  • The words and actions of the testator prior to and after the association of the caregiver and the testator.

Due Execution – For a will to be valid in Texas it has to be:

  • In writing;
  • Signed by the testator; and
  • Signed by at least two witnesses 14 years-old or older in the presence of the testator.

If the executor did not follow these steps, it would give the impression that he or she probably didn't follow any other legal guidelines in creating the document.

Fraud or Forgery – In this case, the testator is the victim of a hoax. For example, the testator's child might tell the testator a sibling has been in jail or otherwise broken the law or simply create stories about anyone standing possibly receiving a portion of the inheritance in order to gain that person's share. That child, or anyone who spends a great deal of time alone with the testator, could also find the document and alter it to benefit him or her.

Contesting a will in Texas is difficult, expensive, and rarely successful, so you should think twice before attempting it. If you decide to go ahead, hiring probate lawyer would definitely be a wise move.