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Will Contests

Contesting a Will in Texas

There may be circumstances when the process of executing a will was not done properly. In these cases, it might be necessary to formally contest the will or to reform the will to ensure the estate is administered or distributed as the decedent intended.

Who May Contest a Will?

In Texas, any “person interested” in an estate can contest a  matter in probate court.

The term “interested” is defined in section 22.018 of the Texas Estates Code.  The short version is that the term means anyone whose rights in the estate will be affected by the probate or defeat of the will.  This is strictly a monetary interest in the estate. Sentimental or other relations do not count.

No-Contest or Forfeiture Clauses

Some wills include no-contest clauses.  What is a no-contest or forfeiture clause?  It is a clause in a will that says a person’s rights in the estate are forfeited if they bring any court action, such as a suit to contest or modify a will.

If a will has a forfeiture clause and a person brings a court action, they will have to show, by a preponderance of the evidence, that just cause for bringing the action existed and that the action was brought in good faith. If they fail to show just cause and good faith, they risk total forfeiture of their rights in the estate.

Generally speaking, Texas courts rarely enforce forfeiture clauses if the challenge is successful, but this type of clause can be a problem if the will contest is unsuccessful.  One should check to see if the will includes a no-contest clause before actually contesting the will. They should also consult with a probate attorney as to the legal effect of any such clause.  

Grounds for Contesting a Will

One has to make an affirmative statement in a court filing to contest or reform a will.  This statement has to plead the grounds supporting the challenge.

Texas law recognizes the following grounds for contesting a will:

  1. Revocation: Is the will invalid because it had previously been revoked? A will can be revoked either by a physical act (for example: being shredded by the decedent) or by the execution of a subsequent will.
  2. Lack of Testamentary Capacity: A person must have sufficient mental ability, at the time of execution for a will to be valid.
  3. Improper Execution: Though uncommon, it is possible to have grounds to contest a will if the will was not executed properly. Here are a few things one can look for when determining if a will was executed according to the law:
    • Was the will signed by two witnesses in the presence of the decedent?
    • Was the will notarized?
    • Were the signatures of the decedent or witnesses forged?
    • Were additional pages added to the will after it was finalized?
  4. Undue Influence: A will is not valid if, at the time of execution, the decedent was under a significant amount of influence from another person. The following questions help explain when a will was executed under undue influence:  
    • Did an influence exist and was it exerted?
    • Did the influencer undermine or overpower the mind of the decedent at the time he signed the documents?
    • Would the decedent not have signed the document had the influence not existed?

Where and When to File a Will Contest?

The contest must be filed in the court where the application to probate the will was filed. In most cases, this will be the court in the county where the decedent resided at the time of death.

A will contest can be filed before or after the will has been admitted to probate:

  1. Before Probate: If the will has not been admitted to probate, the contest can be filed anytime after an application to probate the will is filed, but before the court rules on it.
  2. After Probate: If the will has been admitted to probate, the contest must generally be filed within two years after the date the will was admitted to probate. Note: in certain circumstances a contest can be filed after the two-year statute of limitations has expired.

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