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Will Contests in Texas Probate Courts

A will contest in a Texas probate court refers to a legal process that entails challenging the authenticity of a deceased person’s last will and testament. Such proceedings are known to be intricate and are often the result of familial disagreements over the allocation of the deceased’s belongings.

Who Can Contest a Will?

In Texas, anyone with an interest in the will or the estate can challenge a will. However, wills are most commonly contested by:

  1. The testator’s heirs or beneficiaries under the will
    • These individuals may challenge the will if they believe that they are entitled to a greater share of the estate than what is provided for in the will.
  2. Excluded beneficiaries
    • These individuals may challenge the will if they believe that they would have inherited from the testator if the testator didn’t have a will (intestate) and the current will doesn’t include them.
  3. Beneficiaries under a previous will
    • These individuals may challenge the will if they believe that the new will revokes or alters their inheritance under a previous will.
  4. Executor or personal representative of the estate
    • This individual may challenge the will if they believe that the will is not valid or that they have been wrongfully removed as executor or personal representative.
  5. Guardians or conservators of the testator’s person or estate
    • These individuals may challenge the will if they believe that the testator was not capable of making a will or that the will was invalid.

Requirements For a Valid Will

The Texas Estates Code sets out several requirements for what constitutes a valid will.

The testator, who is the person that wrote the will, must:

  • be of sound mind
  • not under duress
  • not be under undue influence
  • at least 18 years of age

The will must be in writing, signed and dated by the testator or by someone at the testator’s direction, in their presence, and witnessed by at least two credible witnesses who are not beneficiaries or married to each other.

Contesting a Will

It is common for a valid will to be contested, even though it meets the legal requirements for validity. The most common grounds for contesting a valid will in Texas include:

  • Lack of testamentary capacity
  • Undue influence
  • Fraud
  • Forgery

The interested party that is contesting a will has the burden of proof in court to prove beyond a reasonable doubt that the will is not valid.

Lack of Testamentary Capacity

The term “lack of testamentary capacity” pertains to the situation when the testator lacked the mental capacity to comprehend the extent and value of their property or identify the beneficiaries of their will when it was signed.

In order to prove lack of testamentary capacity, the person contesting the will must show that the testator was suffering from a mental disorder or was under the influence of drugs or alcohol at the time the will was executed.

Undue Influence

Undue influence refers to a situation where an individual uses their position of power or trust to manipulate or pressure a testator to make decisions they would not have made on their own. This can lead to changes in the testator’s will that benefit the influencer at the expense of other beneficiaries.

To prove undue influence, it must be shown that the influencer had a relationship of trust and confidence with the testator, and that they used that relationship to manipulate the testator’s decisions regarding their will.


Fraud involves altering, falsifying, or manipulating a will intending to deceive or defraud others. If this happens, the probate court may declare the will invalid, which can cause significant legal and financial complications. To prove fraud, it must be shown that the will wasn’t executed by the testator or the testator’s signature was forged.


Forgery typically involves the falsification of the decedent’s signature since wills are typically typed, created with an attorney, witnessed by two witnesses, and notarized by a public notary. However, in the case of holographic wills, the contents of the will may be entirely forged since these types of wills are handwritten. In these cases, a handwriting expert would need to be brought in to examine the handwriting of the will and handwriting samples of the decedent.

Statute of Limitations for Contesting a Will

In Texas, a person has two years from the date that the will was admitted to probate to contest it. If the will has not been admitted to probate, the statute of limitations would begin from the decedent’s date of death.

If a will contest is not filed within the two-year period, the court will not consider the challenge. The executor will be able to proceed with the distribution of assets according to the terms of the will.

Contesting Before and After Probate

Will contests in Texas probate courts can be filed before or after a will is admitted to probate.

To contest a will before it’s admitted to probate, a petition must be filed with the probate court asking them to determine the validity of the will. This is known as a caveat proceeding. The purpose of a caveat proceeding is to prevent the will from being admitted to probate until the court reviews its validity.

To contest a will after probate, a lawsuit that challenges the validity of the will must be filed against the executor or personal representative of the estate. Then, the court will determine if the will is valid and should be given effect.

In either case, the probate court will hold a hearing to consider the evidence and testimony presented by both sides and make a decision on the validity of the will.

Delaying the Probate Process

Contesting a will can delay the distribution of assets from the estate. When a will contest is filed, the probate court will typically freeze asset distribution until the contest is resolved. This can cause significant delays, especially if the case goes to trial and the court has a backlog of cases.

The probate process will also be delayed if the court finds that the will is invalid. Particularly, if it results in the estate being distributed according to the laws of intestacy. This may lead to more legal proceedings to determine who is entitled to inherit the assets of the estate.

It is also worth noting that it’s not uncommon for a will contest to be settled out of court, which can speed up the probate process.

Distribution of Assets When the Will is Invalid

If a will is found to be invalid, the assets of the estate will be distributed as if the testator didn’t have a will. This is known as “intestate” and is governed by the Texas Estates Code. This means that the assets will be distributed to the decedent’s heirs as determined by Texas law, regardless of the wishes expressed in the invalid will. The order of priority for distribution of assets under the intestacy laws is based on the relationship of the decedent to their surviving relatives.

For example, if the decedent had a surviving spouse and no children, the spouse would inherit the entire estate. If they don’t have a spouse or child, the assets are given to the testator’s parents, siblings, and other relatives, in a specific order.

The Takeaway

Will contests in Texas probate courts are used to challenge the validity of a last will and testament. The most common grounds for contesting a will in Texas include lack of testamentary capacity, undue influence, fraud, and forgery. Contesting a will can cause significant delays, whether before or after it is admitted to probate. If a will is invalid, the assets of the estate are distributed as if the testator didn’t have a will.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including help with will contests and probate litigation. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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