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11Texas Trust Estate Planning


Intestate Heirs:

Individuals who are legally entitled to inherit from the estate of someone who does not leave a valid will.

Probate Case

Estate of Glover, 744 S.W.2d 939 (Tex. 1988)

Circumstances & Procedural History: Proving a New or Old Will

This case pertained to a will contest between a will beneficiary and several others, including W.I. Bennett (Intestate Heirs). The Court of Appeals considered whether sufficient evidence existed to support the jury’s finding that the will provided had not been revoked by Glover (Testatrix). The Court of Appeals stated that, when a will had not been produced in court and was last seen in the possession of a testatrix, a presumption of revocation exists. Intestate Heirs argued that the presumption of revocation could only be overcome by clear and convincing evidence. The Court of Appeals held that the correct standard used to determine whether evidence was sufficient was the preponderance of the evidence standard.

Intestate Heirs appealed to the Supreme Court. The Court affirmed the Court of Appeals ruling, and denied the application for writ of error filed by Intestate Heirs.

Main Considerations: Rebut the presumption?

What is the correct standard of review for the Court of Appeals regarding the sufficiency of the evidence provided?

The preponderance of the evidence standard. The Supreme Court disapproved the cases where courts of appeal have held that the standard of review is by clear and convincing evidence.

Do you need an Experienced Attorney for a Will contest?

If you believe that your will was not properly revoked, you may have a legal challenge ahead of you. In most cases, a will is automatically revoked when the testator dies; however, there are a few exceptions. If the will is not properly revoked, the probate court may invalidate the will and award estate rights to the beneficiaries that were not originally intended. To contest a will revocation, you’ll need help from an experienced attorney. Call us today for a FREE attorney consultation. (281) 219-9090.

What supersedes a will?

When a will is executed, it becomes effective as a written testament or declaration of your wishes for the distribution of your assets after you die. However, in many cases, subsequent events (such as a spouse’s death) may nullify the will. If this is the case, the laws of intestacy (inheritance laws) take effect and dictate how your assets are distributed.

The following are some factors that can invalidate a will:

1. The testator was mentally incompetent when he made the will.

2. The will was made with undue influence (bribe or threats of violence).

3. The will is void because it was not signed by all of the testator’s witnesses.

4. The will was not properly executed (for example, it did not include an exact description of all property owned).

5. There has been a change in intestacy law since the will was made.

6. The testator revoked his will before he died (this is called an “ex gratia” revocation, meaning “for the good”).

What is revocation in law?

Revocation is the termination of a will by a competent authority. There are various reasons why revocation may be necessary, such as when the testator became incapacitated or if the will was found to be fraudulent. In order to revoke a will, the competent authority must be able to demonstrate that the testator’s will was not valid at the time it was made. There are generally three types of evidence that can be used to support revocation: documentary, testimonial, and moral.

How long is a will valid after death?

If a testator’s will is valid when it is made, it remains valid until it is revoked by the testator or the court. A will may be revoked by the testator by any of the following actions: (1) declaring that he no longer wishes to make a will; (2) executing a new will contrary to the first; (3) admitting in writing that he did not know what he was doing when he made the earlier will; or (4) communicating with the witnesses to his will after they have ceased to exist or refused to act as witnesses. A will may also be revoked by the court if it is found to be invalid for any reason.

What voids a will?

If a decedent’s will is not properly executed, then the will may be voided. A will can be voided if it is not signed by the person who made the will, if it is not dated within a certain time frame, or if it does not meet other formal requirements. If a will is voided, any property that was set to go to specific beneficiaries may instead go to the state.

How long is a will good for?

Wills are valid for as long as you are alive and have the mental capacity to make them.