The death of a loved one is never easy. Worse, however, is when their last will and testament gets wrapped up in disputes and litigation, preventing everyone from being able to move on from their loss.
Unfortunately, no one can fully prevent these quarrels from happening. However, there are a few things that testators can do when drafting their will, in order to make them less likely.
Here’s what you need to know about will contests in Texas, and how the Neal Ashmore team can help you prevent—and/or settle—yours.
What is a Will Contest?
A will contest is what occurs when someone formally disputes the validity of a testator’s will—and by “formally,” the person in question must be doing more than just a little grumbling.
Complaints and naysaying won’t cut it, here. In order for objections to qualify as a “will contest,” gripes must be formally lodged with probate court. These complaints can be aimed against certain parts of a will, or to its entirety.
Will contests can occur under any number of different circumstances, however, some of the most common arise when:
- A will can’t be located;
- Heirs are disinherited;
- Children are treated unequally;
- Signature don’t seem legitimate;
- The will’s terms changed suddenly, and/or under suspicious circumstances;
- The testator was old, disabled, or had questionable mental capacity;
- The testator wasn’t behaving normally; or,
- The will’s language is ambiguous.
As a general rule, Texas courts are extremely reluctant to mess with a testator’s wishes, and won’t overturn them just because disgruntled heirs don’t like the terms. Only objections based on strong, compelling grounds will be enough to overturn anything.
Will Contest Grounds in Texas
Similar to filing for divorce, a will challenger needs to state their grounds, when filing their petition.
“Grounds” are essentially the reason you’re bringing a case; they answer the question, “Why?” and are the foundation upon which your entire challenge rests.
In Texas, four of the most common grounds for will contests include:
- Improper Execution
- Lack of Testamentary Capacity
- Undue Influence
Here’s a closer look.
1. Improper Execution
Proper execution means that a will was drafted the right way, according to state statutes. This is important, because a will that isn’t properly executed cannot be enforced.
In Texas, proper execution requires that a will is:
- Signed by the testator;
- Witnessed by two people; and,
- Signed by witnesses in the testator’s presence.
Furthermore, if a will is handwritten, then it is only valid if it is in the testator’s own handwriting. A will penned by someone else does not qualify.
2. Lack of Testamentary Capacity
Another favorite challenge is for heirs to question the testator’s testamentary capacity.
Testamentary capacity refers to a person’s mental ability and wherewithal to make a will. In Texas, this requires a testator to:
- Understand they’re creating a will;
- Understand the effects of their will;
- Understand their property;
- Understand who their beneficiaries are; and,
- Understand how all these elements will work in relation to one another, once the testator dies.
In a nutshell, testamentary capacity requires testators to be mentally stable. Otherwise, heirs can argue they didn’t have the mental competence to make decisions, in the first place.
3. Undue Influence
Undue influence occurs when someone close to the testator exerts their relationship to exploit the future terms of a will.
A challenger who brings this argument must show that:
- Influence existed and was exerted; and,
- That this influence overpowered the testator’s will; and,
- That if it wasn’t for this influence, a different decision would have been made.
This argument often arises when an elderly, frail testator inexplicably cuts out children as beneficiaries, and instead leaves their property solely in the hands of an unrelated caretaker.
Finally, wills based on fraud are not valid.
In order to succeed on grounds of fraud, a challenger will need to show that:
- Someone made a false representation;
- The person making the representation knew it was false;
- The person intended the testator to act on that representation;
- The testator did act on the representation; AND,
- That the challenger suffered injury as a result of this action.
As you can see, no matter what grounds you choose, invalidating a will is not an easy task. However, if it’s one you decide to take on, keep in mind that you, personally, will also need to qualify, as not everyone does.
Who Can Contest a Will?
According to Texas law, anyone “with interest” in an estate can contest a will—and this doesn’t mean you can bring a case against your recently deceased neighbor, just because they have a house you’re interested in.
In legal speak, “interest” means that you have standing in the case. Or, in other words, that the case—and its outcome—directly affects you in some way.
For purposes of a will, those with standing include:
- A spouse or child;
- Another heir;
- A creditor; or,
- Anyone else who has a claim on, or rights to estate property.
Basically, this refers to anyone who would have inherited if there hadn’t been a will.
Preventing a Will Contest
Unfortunately, there’s no way to ensure that your last will and testament is never disputed. People are unpredictable (even if their motives aren’t), so there’s no way to guarantee your heirs won’t fight over your things.
That being said, there are some things you can do to help deter will contests. For example, you might want to:
- Vocalize your wishes—the more people who know what your will contains, the harder it will be for heirs to dispute its validity, later on.
- Include a no-contest clause—when added to a will, this clause provides that if an heir challenges a will and loses, they’ll get nothing.
- Prove your competency—a clean bill of mental health can help prove you have a sound mind, so consider including a doctor’s evaluation with your will.
- Video record the signing—not only can this help prove competency, it’s also a good way to show family members you weren’t coerced.
- Avoid undue influence—leave all of your intended beneficiaries out of your estate planning process, thereby nullifying the argument of undue influence before it can begin.
Finally, above all, the single biggest thing you can do to help prevent a future will contest, is to draft your will with the assistance of an experienced attorney. The right representation can help you avoid probate pitfalls, and give you the peace of mind in knowing you’ve done everything you can to leave behind a good future for the ones you love.
Attorneys for Will Contests in Texas
It doesn’t matter whether you are challenging a will, or are fighting to protect one against the challenges of another, will contests are difficult for everyone. And while we can’t prevent these protests from arising, the team at Neal Ashmore can help you settle them as swiftly as possible.
If you have more questions about will contests in Texas, we want to help. Call our offices today at (972) 436-8000, or schedule a consultation online, and together, we can help ensure that the wishes of your loved one are fully carried out.