Contest a Will

“I’m going to contest the will!” We have all probably heard someone utter that phrase one time or another. But, what does it really take to contest a will? How easy is it to do? How can it be prevented? In this blog, I will go over these common questions about contesting a will.

Can I contest the Will?

Having the lawful status to contest a will is referred to as having “standing.” Texas Estates Code §55.001 provides little guidance in stating, “a person interested in an estate” may file a written opposition regarding an issue. We find more information in the definitions section of Texas Estate Code §22.018, which provides that a “person interested” means an heir, devisee, spouse, creditor or any other person having a property right in or claim against the estate, and anyone interested in the welfare of an incapacitated person. Several courts have interpreted the statute using the plain language in the statute and limited the scope to those identified in the definition. Courts have gone as far as holding that the executor of the estate did not have standing. See In re Estate of Bendtsen, 230 S.W.3d 832, 834 (Tex. App. – Dallas 2007, no pet.); In re Estate of Davis, 870 S.W.2d 320, 322 (Tex. App. – Eastland 1994, no writ.). You would, however, be considered an interested party if you would inherit under the intestate succession laws had there not been a will.

Should I contest the will?

Whether you should contest a will is a personal decision you will have to make. Things to consider include whether you want to share your family’s secrets with the public or have others passing judgment about your love ones. The decision may be easier to make if the circumstances are as such that you believe someone took advantage of your loved one’s mental state. However, it may not be as easy to decide when the circumstances include your next of kin leaving property to someone else and intentionally leaving you out of the will. You may worry that contesting a will under these circumstances may cause some people to view you as greedy or unwilling to follow the testator’s last wishes.

Time limit Contest a Will

Texas Estate Code §256.204 states that after a will is admitted to probate, you may commence a suit to contest the validity of the will within two years of the date it was admitted to probate. However, the rules are not that cut and dry. Texas Estates Code §256.003 allows a person to wait up until four years after the testator’s death to file for probate. You may not want to wait that long to contest what you believe is written in the will or the validity of the will. You may want to force the will to be probated sooner. Under some circumstances, such as a contest based on forgery or fraud, you only have two years from discovering the forgery or fraud to file your case. Therefore, you should consult an estate planning attorney as soon as you believe you may have grounds to contest a will.

Do I Have Grounds to Contest a Will?

Texas Estates Code §504.001 et seq. lists the grounds available for contesting a will. Some of the grounds include:

The will was not properly executed.

When a person creates a will without an attorney, such as one may do with a will kit, he or she may not appreciate the nuances associated with the signing ceremony. Possible problems during the will signing ceremony may include: 1) not having at least one disinterested witness to the testator’s will; 2) strike throughs and pen and ink changes to the testator’s will that causes confusion as to the text present at the time the will was signed and/or witnessed; or 3) numerous staples holes in the will making it unclear as to which pages were present during the signing.

Undue influence.

This is probably the one most people talk about. A situation may arise in which a person, such as a new friend or health care worker, wins the trust of an elderly person in a short amount of time. The next thing you know the elderly person is dependent only on the new person and may cut their next of kin out of their life. Shortly thereafter, the elderly person changes their will and names the new person as the only beneficiary. It may or may not be undue influence, but it sure feels like it. No one wants to see another person taken advantage of, so contesting the will may be the way to ensure an independent person, e.g. the judge, evaluates the circumstances to confirm the will reflects the true intent of the testator.

Testamentary Capacity.

You may be personally familiar with the testator and their mental capacity or there may be a videotape of the will ceremony that brings the testator’s testamentary capacity into question. The testator does not have to be free from memory problems but needs to be able to demonstrate he or she knew they were giving away their property, what property they were giving away, to whom they were giving their property. This is a slight oversimplification of what is required, but an experienced estate planning attorney overseeing the will signing ceremony can help ensure your will signing ceremony meets the legal requirements to be valid.

How to Stop Someone from Contesting a Will?

Although it may not be possible to prevent a person from filing a will contest, you can certainly take steps to make a person think twice before bringing the claim. One way to discourage a person from contesting a will is to prohibit them from inheriting property if they do bring a claim. You can do this by including a “no contest” clause in the will. A no contest clause would generally state in part, “if any person directly or indirectly contests the probate of this will or any provision thereof, then that person and his or her descendants shall forfeit all gifts and beneficial interests in my estate. . .” However, if the testator does not leave enough property to the contesting party, then the contesting party may feel they have nothing to lose by filing a contest. Therefore, to give weight to the no contest clause, the testator should consider giving any party likely to contest the will enough incentive not to contest it.

A “no contest” clause is not 100% fool proof. The court will strictly construe the clause and may find that the contest brought against the estate is not an actual will contest. Contests filed to challenge the executor, demand probate of the will, or challenge the conveyance of a beneficiary’s interest in a deed have all been found by courts to not be will contests in violation of a no contest clause.

If you are interested in contesting a will or discouraging someone from contesting your will, then you should consult an estate planning attorney for guidance. Contact the Law Office of Hugh Spires, Jr. for assistance or learn more at www.TexasWillsLawyer.com.