The outcome of a challenge to a last will and testament (a “will contest”) can exert a decisive effect on the lives of everyone involved. Naturally then, will contests are exceedingly common.

Texas law provides a number of potential justifications (“grounds”) for contesting a will. Without at least one of them, the challenge will be thrown out of court.

Successfully challenging a will may or may not get you what you want. For example, if invalidating the will means there is no longer a valid will, the property could pass automatically under Texas “intestate succession” law. Another possible consequence is that a will may be declared invalid in favor of another will. Carefully consider the outcome before you challenge a will.

Most Common Grounds for Contesting a Will

Below, you will find an explanation (in plain English) of some of the most common grounds for contesting a will. They are not the only possible grounds.

  1. Lack of Due Execution: “Lack of due execution” means the will wasn’t signed properly. Texas recognizes two types of wills for this purpose: an attested will and a holographic will.
  • An “attested” (witnessed) will is duly executed if it is in writing, and if it is signed by you in the presence of two credible witnesses at least 14 years old.
  • A “holographic” (handwritten) will is duly executed if it is written entirely in your own handwriting and signed by you. No witnesses are necessary for a holographic will.
  1. Lack of Testamentary Capacity: “Testamentary capacity” refers to the mental state of the person who is bequeathing his property (known as the “testator”). This person must understand the nature and value of his property as well as the identity of the “natural objects of his bounty” (his family, for example). He must also understand the legal effect of executing a will.
  2. Undue Influence:Undue influence” means that someone else exercised an unfair or excessive influence over the testator. A daughter, for example, might convince her mother to “cut off” all of her siblings and leave everything to her. A testator does not have to lack testamentary capacity to be subject to undue influence. Texas courts will examine ten factors:
  • The nature of the relationship between the testator, the will challenger, and the person accused of exerting undue influence;
  • The opportunity for exerting undue influence;
  • The circumstances of the drafting and signing of the will;
  • Whether the accused had fraudulent intentions;
  • Whether the accused exercised frequent control over the testator;
  • The testator’s state of mind at the time the will was signed;
  • Whether the testator was mentally or physically capable of resisting the influence;
  • The testator’s words and actions;
  • Weakness in the testator’s body or mind, regardless of whether it was produced by disease or the aging process; and
  • Whether the will’s disposition of the testator’s property seems unnatural (the testator “cut off” his family and left everything to the nurse who treated him, for example).
  1. Fraud or Forgery: Fraud can invalidate a will if the testator’s choices were critically influenced by deceit. For example, Jack might convince his father that his sister stole money from him. If Jack’s father reacts by “cutting off” Jack’s sister, the will is probably invalid. Likewise, forging the testator’s signature (particularly without the consent of the testator) is likely to invalidate a will.
  2. Lack of Testamentary Intent: “Testamentary intent” is the intention to dispose of your property after you die. An example of lack of testamentary intent would be if the testator signed a will believing that it was simply a power of attorney that would temporarily authorize an agent to manage her property during a terminal illness.
  3. Revocation: There are two ways to revoke a previously valid will: (i) by subsequent instrument and (ii) by physical act. “Subsequent instrument” means a document that revokes your will. You must either sign a valid new will or revoke your old will in writing. A physical act could mean tearing up your will or something you believed to be your will.
  4. Misinterpretation/Rectification: Someone contesting a will may argue that, although the will is valid, it has been misinterpreted. The will may leave something to “my daughter-in-law,” for example. If the testator’s son has since remarried, this may leave room for misinterpretation. A clerical error might also give rise to a will challenge (a “rectification” claim).

The Standard of Review and the Burden of Proof

A will contest is a civil action, not a criminal prosecution. In a criminal prosecution, the standard of review is “beyond a reasonable doubt.” In a will contest, by contrast, the standard is “a preponderance of evidence.” Put in plain English, it means something like “more likely than not.” If you had to put a percentage on it, the temptation would be to tag it at 51% or 50.1%.

The “burden of proof” refers to the responsibility for proving the assertion at issue (“My mother’s will is invalid”, for example). In a Texas will contest, the burden of proof is on the person who asserts that a will is invalid. He must prove the invalidity of the will by a preponderance of the evidence, and the other party is responsible only for preventing him from doing this.

Contact Romano & Sumner If You Anticipate a Will Contest

Winning a will contest, whether on offense or in defense, requires careful planning. Moreover, once litigation begins, strict deadlines will apply and you could seriously damage your case if you miss a deadline or “throw something together” at the last minute. When litigation looms, time is of the essence and the glue of circumstance can harden quickly around your feet.

If you live in or near Sugar Land, Texas; including Mayfield Park, Ragus Lake Estates, First Colony, Sugar Lakes, or elsewhere in town; and if you anticipate either contesting a will or defending against a will contest, contact the attorneys at Romano & Sumner immediately for a free initial consultation. We can be reached online or by telephone at (281) 242-0995.