Most Texans believe that their signature on a will ends the estate planning process and precludes any ill will between relatives who might be expecting a hefty bequest. Unhappily, this expectation commonly frustrated by what is known as a “will contest.” A potential heir may in fact expect a larger bequest than is provided by the will. In such situations, the disappointed heir may decide to challenge the will by commencing a will contest.
What is a will contest?
A will contest is a lawsuit that alleges that the decedent’s will is invalid and should not be enforced according to its terms. Texas law limits the right to start a will contest to a direct descendant or parent of the decedent and to other persons who reasonably expect to receive a bequest. The grounds for declaring that a will is not legally enforceable are also restricted.
Failure to abide by the formalities
To be valid, a will must be written and signed by the person making the will (the “testator”) in front of two witnesses who are at least 14 years of age. If a will does not meet these requirements, it is deemed invalid. Other grounds exist for successfully challenging a will.
Lack of capacity
The testator must be possessed of a sound mind when signing the will. In other words, the testator must understand that he or she is giving away property by signing the will. Proof of lack of capacity usually takes the form of medical evidence of some form of mental disability such as dementia or Alzheimer’s disease.
A will can be invalidated by proof that one of more of the beneficiaries exercised undue influence over the testator and thereby deprived the testator of the free will that underpins the validity of all wills. Proof of undue influence consists of evidence that another person, such as a caretaker, family member, or friend, had a close relationship with the testator and persuaded the testator to make bequests that the testator would not otherwise make.
Fraud or forgery
A will that is the produce of a fraudulent representation made to the testator is also invalid. Proof of fraud usually involves evidence of a false statement of material fact that leads the testator to specify a bequest to the person making the false statement.
The law of will contests in Texas can be complex. Anyone considering challenging a will or defending against a challenge may benefit from consulting an experienced probate attorney for an evaluation of the evidence and an opinion concerning the likelihood that such a contest will succeed.