On occasion, a Will offered for probate does not reflect the true wishes of the person and the probate of that Will may be contested. The state of Texas wants to be sure the wishes of the testator (the person who wrote the will) are followed, but certain circumstances may show the Will is not valid.
Will contests are frequently difficult and costly, and strong evidence will need to show the Will is not valid.
How to Begin a Will Contest: Filing the Petition and Standing
The first step in contesting the will is to file a petition in probate court after the will has been admitted. You have two years after a Will is admitted to probate to file this petition. Best practice is to file a contest after the Will has been offered for probate but before it has been admitted, whenever possible. Your petition must show that you have standing to contest the will and present the grounds on which you are basing your contest.
Standing. Standing refers to your relationship to the testator and their estate, and whether you have the right to object to the validity or terms of the will. The following “interested parties” have standing under statute:
- Heirs;
- Devisees (someone who inherits from the will by being a relative of the testator);
- Spouses;
- Anyone who can present a valid claim against the estate.
Possible Grounds for Contesting the Validity of the Will.
The most common grounds for contesting a will involve misconduct by another person. A couple of examples are:
Undue influence. Someone the testator loved and trusted exerted undue influence over the testator during the testator’s final days. The person may have ingratiated themselves as a caretaker or been able to isolate the testator from real family and friends.
Lack of testamentary capacity. If the testator was not in his or her sound mind, their capacity may have been lacking, and the will may be determined to be void.
Mistake. The testator did not know he or she was signing the will and was tricked into signing the document.
Fraud. This may happen if witness signatures are forged, or pages are included in the will that were not included at the execution.
Lack of due execution. The will may not meet statutory requirements, such as not being signed, not being witnessed, or not being dated.
Often, bad actors will take advantage of declining mental capacity to exert influence over a testator or convince them to sign something they wouldn’t if they were in their right mind.
These are just a few grounds for contesting the will in Texas. If you have reason to believe that you have grounds for contesting your loved one’s will, contact Aubry Dameron one of our estate planning attorneys at Springer & Lyle. You can also reach us at 940.387.0404.
