When a person dies and leaves a will, that will must go through the probate process in order to establish its validity. A will is considered valid if it has testamentary intent, which means it has to state that what is written in the will accurately records the wishes of the person who drafted it. In most cases, those involved accept the court's decision as to the validity of the will. In some occasions, however, someone disagrees, and, if they have legal standing, they have the right to challenge that decision.
In order to have legal standing, a person must have financial or legal interest in the estate. Those with legal standing include:
- Heirs-in-law – Heirs-in-law are relatives that would inherit the testator's, or decedent's, property under the state's intestacy laws should the testator die without a valid will. This includes spouse, living children, parents, and siblings.
- Beneficiaries – Beneficiaries who were named in earlier wills but received less or were left out of the current will completely may contest the current will. Anyone named in the current who believes their share is incorrect or that a portion of the will has been tampered with may also challenge the will.
- Creditors – Creditors include anyone the testator owed money to, especially if the will seems to improperly shield assets or if there are concerns about fraud or improper execution.
The grounds upon which a person can contest a will are very specific. “Feeling something isn't right” is not an acceptable reason. The challenger must be able to present evidence in order to prove their accusations. In order to do this, challengers must file under one of these categories:
- Lack of Testamentary Capacity – The testator must understand completely what he or she was doing when they created the will or was in their sound mind. They must also know clearly who their natural beneficiaries would be, such as a spouse or children, and they must fully know which property is theirs. It is often assumed that, if a person is diagnosed with any form of dementia, they are automatically unable to create a valid will. However, those in early states of this condition will have moments of lucidity, in which they could be determined as “being in a sound mind.” When contesting a will based on reduced capacity, especially in cases of dementia, the challenger will need to gather medical records and possibly statements from experts as evidence. Witness testimony concerning any erratic behavior on the part of the testator would also be helpful.
- Undue influence – This is when the challenger believes the will was created under false pretense. The person involved, or the manipulator, is often the caregiver or a close member of the family. They gain the testator's trust by isolating them from the rest of their loved ones. They tell them their loved ones don't care about them, then pressure them into leaving them large parts of the estate that would have gone to family members. In this case, the challenger must prove the testator had fallen completely under the manipulator's control, or even feared for their lives if the changes were not made.
- Fraud and Forgery – In the case of fraud, the manipulator convinces the testator to create or alter a document that distributes their assets in the manipulator's favor. They might tell the testator lies about family members in order to have them disinherited. They may trick them into signing a false document or a document they don't understand. Forgery involves using the testator's signature without their permission. They may change the names of beneficiaries or dates or alter clauses in a will that has already been executed. They may even create an entirely new document. Proof of fraud would include witness testimony from family and friends or possibly mental health professionals who might recognize subtle changes in the testator's behavior. In the case of forgery, the challenger might need to call on handwriting experts to analyze signature patterns, as well as other technical details.
- Failure to Meet Execution Requirements – A will must meet certain requirements determined by the state of Texas in order to be declared valid. To be valid, a will must be:
- In writing. Texas does recognize handwritten, or holographic wills, as along as they are entirely in the testator's handwriting.
- Signed by the testator or someone at their direction and in their presence
- Witnessed by two credible witnesses
- Signed by two credible witnesses
The challenger must prove one or more of these requirements has not been met in order to prove their case. Even the lack of one signature could make the difference.
New or Conflicting Will Appears - In Texas, the assumption is the most recent will reflects the testator's wishes, as long as it is determined they were in their right mind when they created it. Any previous will will be revoked. Most wills contain a revocation clause that explicitly nullifies any previous prior wills. In the rare case that the clauses is not included, the court still favors the most recent document. However, heirs or beneficiaries may challenge the will accepted by the court if they believe the testator was forced or manipulated into writing it or the testator backed capacity. To prove this, the challenger must produce the will they believe is the valid document and show that it is radically different from the newer version, with a notable change in beneficiaries.
Before initiating any legal actions, anyone challenging a will should consult an attorney to discuss a possible “No-Contest Clause.” This clause states that, if a beneficiary challenges the will and loses, they could lose whatever they would have inherited under the current will. Although it is enforceable in court, it does have some exceptions. An attorney would help you decide if taking this step is worth the risk or effort.
Once you have determined if you have the legal right to contest the will and what you have to do to prove your case, you must go to court. Challenging a Will – Part 2 will outline those steps for you.