There are different reasons why someone might suspect the validity of a will. Perhaps a new will has turned up that is radically different from the current one, or there are signs the current will was changed under duress. In Texas, if you have proven you have a legal interest in the testator's estate, as well as legal grounds for suspicion, you may present your case in court. However, there are several steps you must take before you appear before a judge.
If you choose to take this route, the first thing you should do is determine your timeline. The state of Texas has a very strict statute of limitations when it comes to challenging a will. Because of this, consulting an attorney would be an excellent start. They would help you understand what your timeline. For example, the standard timeline for a typical case is two years from the date the will is submitted to the probate, when the judge recognizes it as valid, and the probate process begins. If there is reasonable suspicion of fraud or forgery that could not have been proven during that two years, however, an additional two years is granted. If an heir comes forward who was unaware during the probate process that they were entitled to inherit part of the estate or had been incapacitated during the standard two year period, they would be allowed an additional four years. To ensure you don't miss any deadlines, consult with an attorney.
Once you understand the timelines, it's time to begin the legal process. Here are the steps.
Step One - File a legal petition. This petition is filed in the court handling the estate and details:
- Who you are and how you qualify to file the petition. Are you an heir-in-law? Beneficiary in a previous will?
- Explain the specific legal grounds you are using to challenge the will. Vague or emotional objections are not acceptable. You must be able to present verifiable facts to prove your case, such as legal documentation or testimony from professionals.
- Explain what outcomes you are seeking. Do you want to see the entire will invalidated or simply certain provisions?
- Notify all legal parties of your challenge. This includes the executor of the current will and beneficiaries.
Step Two – Discovery Phase – When you contest a will, the burden of proof is on you. You must present convincing evidence to support your claim. There are different ways to do this:
- Requests for documents – This is the legal demand for documents relevant to the case, such as medical records showing signs of cognitive decline, previous versions of the will, bank statements, and personal e-mail. In the case of forgery or fraud, you may get documented results from professional handwriting analysis or results from forensic examination of the will document itself.
- Interrogation – You may give the opposing party a set of written party a set of written questions that must be answered in writing under oath.
- Deposition, or sworn interviews outside of court – This could include interviews with friends or family who may have noticed a change in the testator's mood or behavior. Interview those who witnessed the signing of the will. If you are charging undue influence, interview the caregiver or anyone who had exclusive access to the testator in their last days.
At this point, the state of Texas usually requires an attempt at mediation. In mediation, all parties meet with a neutral third party in an attempt to reach a settlement that will help them avoid going to court. Any result is legally binding and will hopefully help keep families from slitting up permanently due to a court decision.
Going to court – If mediation does not work, the case goes before the judge. Each side has the chance to present documents and legal arguments, call witnesses under oath, and cross-examine the other party's witnesses. The judge will hear the arguments, review the findings, then evaluate the admissibility and credibility of the evidence presented. Finally, he or she will make a ruling.
If the judge rules in your favor, the current will will be declared invalid. If an earlier will exists, the court will revert to it. The estate will be distributed according to that document. If no earlier will exists, the estate will pass under Texas intestate succession laws, meaning the property is distributed according to the decedent's closest relatives, such as spouses, children, parents, etc. However, if the current will is declared valid, it will proceed through the probate process, where the executor named in that will gathers assets, pays any debts, and distributes the estate.
Many states have what is known as a no-contest clause. This clause states that if a beneficiary contests the will and loses, they lose their share of the inheritance. It is meant to discourage unnecessary challenges. Courts usually honor non-contest clauses. However, they can be unenforceable if the challenger can prove the action was taken in good faith. If the will you are contesting contains a no-contest clause, it's best to consult with an attorney before you file a petition in order to see how it would effect your case.
If you are thinking about challenging a will, consulting an attorney is a good first step. They can help you understand vital deadlines, decide if you have a strong case, and tell you what you need to do to defend your claim before you make your final decision. Nancy Perry Eaton has had years of experience with the probate process. She can help you with any questions and help you work through this complicated process. Contact her office at 254-221-8588.