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Legal: Will Contests

Legal: Will Contests

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

Legal: Will Contests

In this writer’s experience, a well-drafted Will that is witnessed in accordance with the requirements and formalities of the strict statutory dictates of a Will execution in Texas is very difficult to successfully attack.

Having said that, I should remind you that we are a very litigious society, and that every named beneficiary, together with all of those persons who believe they should have been named as a beneficiary, has the right to file a lawsuit to try to overturn the Will .  The same is true for a person who wants to file a lawsuit because “they do not like the way you comb your hair.”  Foolish as that might be, they have a right to do so.

Just because someone has the right to file a lawsuit does not mean that they will prevail.  In the case of one person suing another because they do not like the way they comb their hair, the lawsuit would be quickly dismissed by the Court for failure to state a claim.  All lawsuits must state a claim for relief that is a justiciable issue.

If someone is attacking a Will just because they think that they should have received more, and if it is a well-drafted Will, properly executed, chances are great that their claim will get “nipped in the bud.”

There are a limited number of ways to overturn a Will through litigation.  The most common ways are through offering proof of lack of capacity, undue influence or fraud.  These attacks are discussed in greater detail in the following:



A person must meet the following requirements to have the capacity to execute a Will.

a. They need to be 18 years of age or have been lawfully married or a member of the armed services or auxiliary of the armed services or maritime services.

b. Person making the Will must be of sound mind. This is a fact that the proponent of the Will must prove in order to have it admitted to probate.  (See c. following.)

c. If the Will is “self- proven” in accordance with statutes in the Texas Estates Code, the burden of proving sound mind is not required at the time of probate.  If the Will is not “self-proven,” the burden of proof shifts to the contestant to prove that the testator was not competent.  This is very difficult to prove.  The testator may wear a tinfoil hat and run around talking to butterflies on one day and then may be entirely sane and rational the next day.  The burden of showing sound mind depends solely on what the testator was at the time that he/she signed the Will and not what it was at the time of his/her death 

d. Testator must have testamentary capacity which can be defined as testator having the ability to know and understand he/she is making a Will which will determine how his property passes upon his/her death.  He/she must also know the effect of the act of making his/her Will shall have on the objects of his/her bounty (i.e. his descendants or other family) and the extent of their claims upon him/her together with a general knowledge of the nature and extent of his/her property.



Another way to overturn a Will is through a showing of undue influence.  This implies that the person had the capacity to make a Will, but that capacity is overcome by dominant influence or power of another.  In one case of which this writer is aware, a testator changed his Will in the hospital at gunpoint a few days before his death.  The Court easily found undue influence was present, but undue influence can be much less than that dramatic.  It usually involves a person who exercises such dominion and control over the testator that he/she yields to their wishes.  It is the practice of this attorney to discuss these topics in only the presence of the testator while he/she is alone with him, and not within the view or influence of other persons.



The Texas Estates Code article 256.204 provides for setting aside a Will for fraud or forgery as long as they filed the suit within two years of the date such forgery or fraud was discovered.

If you know of a Will where the decedent clearly fell into one of the above categories – spend a little time with a qualified attorney of your choosing to discuss the pros and cons of an action.

WARNING – Will challenges are typically very expensive and time consuming to pursue.  You must be very sure of your facts before filing the lawsuit.  In addition to labor intensive attorney fees, you will be faced with expert witness fees for doctors and other medical professionals.  In addition, typically there will be multiple depositions and other time-consuming discovery. 

Hopefully, you will never be in a position to challenge a Will or to have your Will challenged.  The very best way that you can guard against such action for your own Will is to be certain that you hire an attorney experienced in estate planning and probate law to draft your Will.  In addition to him/her drafting your Will, you need to be sure that he/she exercises the exact requirements of the Estates Code.

In the event that you wish to contest a Will, first talk to an attorney experienced in probate litigation.  We are fortunate in Harris and Montgomery counties to have many talented attorneys who can handle Will contests.  If you do not know one, it is recommended that you obtain a referral from an attorney whom you trust.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office at 208 McCown Street in the heart of historic Montgomery, by appointment only.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see-www.houstontxprobate.com.

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