FAQs About Probate

What are Valid Reasons to Contest Will in Texas?

by Rania Combs

His dad had been sick and weak. He didn’t even have the strength to write his own name. Nevertheless, after his father died, his stepmother produced a deathbed Will for probate which left all her husband’s property to her.

But something seemed fishy to him. Because his father was weak, his stepmother had handwritten the Will. His father signed the Will by marking an X, and the Will was witnessed by people related to his stepmother.

“How is this Will legal, and how did the court admit it to probate?” he asked. “What are valid reasons to contest a Will in Texas?”

Situations That Create Likelihood of Will Contest

Texas Tech University School of Law Professor, Gerry Beyer, has written that there are six situations in which there is an enhanced likelihood that a Will will be contested:

  • When close family members are disinherited in in favor of distant relatives, friends, charities
  • When children are treated unequally
  • When there is a sudden or significant change in how a testator disposes of his her her property
  • When there are excessive restricts on bequests
  • When the testator is elderly or disabled
  • When the testator exhibits unusual behavior

Grounds for Contesting a Will in Texas

The Texas Estates Code provides that a person interested in an estate may contest a Will. An interested person is defined as an heir, devisee, spouse, creditor, or any other personal who has a property right in or a claim against an estate.

The person contesting the Will has the burden of proving that he or she has standing to contest the Will and that the Will is invalid. The following are common grounds on which a Will can be contested:

  1. Improper Execution
  2. Lack of testamentary capacity
  3. Undue influence
  4. Fraudulent inducement

What do these grounds for contest mean? Let’s take each one separately.

Was the Will Properly Executed?

Texas recognizes two types of valid Wills in Texas: Holographic Wills and attested Wills.

  • A holographic Will is a handwritten Will. To be valid, a holographic Will much be written completely in the handwriting of the testator, the person making the Will, and signed by him or her.
  • An attested Will is a Will that is not completely in the handwriting of the testator. To be valid, it must be in writing, signed by the testator, or another person at the testator’s direction and in the testator’s presence, and signed in the testator’s presence by at least two credible witnesses.

A Will handwritten by a person who is not the testator, like a testator’s wife, is not a valid holographic Will. In that case, to meet the requirements of a valid attested will, the written Will would have to be signed by the testator and witnessed by two credible witnesses.

Texas courts have found that any mark made by a testator can satisfy the signature requirement. In other words, an “X” is a valid signature for purposes of the signature requirement if a testator makes his or her mark.

With respect to whether the witnesses are credible, Texas defines a “credible witness” as someone who does not receive any pecuniary benefit under its terms. The fact that witnesses are related to the beneficiary of a Will does not automatically preclude them from being “credible witnesses.”

Did the Testator Have Testamentary Capacity?

One of the requirements of a valid Will is that a testator must have testamentary capacity. A lack of testamentary capacity means that the testator was not of sound mind when he or she signed the Will. Testators have testamentary capacity to make a Will in Texas if they are able to understand:

  • the business in which they are engaged;
  • the effect of making a will;
  • the nature and extent of their property;
  • the persons who are the natural objects of their bounty (e.g. their relatives);
  • the fact that they are disposing their assets;
  • how all these elements relate so as to form an orderly plan for the disposition of their property

The fact that a testator is old and feeble if not, in and of itself, sufficient to establish a lack of testamentary capacity. Neither is the fact that the testator has exhibited symptoms of mental decline. Courts have found that the proper inquiry is whether the testator had capacity on the day the Will was executed. In other words, even someone who has been diagnosed with diminished capacity could have a lucid interval in which he or she could be found to have testamentary capacity to execute a Will.

Was the Testator Unduly Influenced?

A person contesting a Will on the grounds of undue influence has the burden of proving:

  • the existence and exertion of an influence
  • that subverted or overpowered the mind of the testator at the time he or she executed the Will; and
  • that the Will would not have been signed but for the influence that was exerted

The most common reason a Will is contested on the grounds of undue influence is when a testator disposes of his or her property by Will in a way that would not have been expected to a person who is in a position to exert influence over the testator.

For example, consider a situation in which a person, who is ill, frail, and susceptible to influence, suddenly revokes a previous Will that named his children as beneficiaries and and instead names an unrelated professional caretaker as the sole beneficiary of his estate. This may raise suspicions of undue influence.

Was the Testator Fraudulently Induced?

To prove fraudulent inducement, a person challenging a Will must establish that:

  • a materially false representation was made
  • the person making the representation knew was false when he or she made it, or made it recklessly without any knowledge of its truth
  • the person making the false representation intended that the testator act on it
  • the testator acted in reliance on the representation
  • injury resulted from the action

An example of a fraudulent inducement would be a case in which someone deliberately tricks a testator into signing a new Will by representing that the document he or she is signing is actually a birthday card or a medical form.

Whether or not a Will should be set aside is a decision for a probate court. Generally, those wishing to challenge a Will have two years after the Will is admitted to probate to contest the Will in Texas.

If you suspect that a Will is invalid, you should engage an experienced probate litigation attorney in your community as soon as possible to review your suspicions and advise you on the best course of action.

About Rania

Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.

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