By Kenneth “Kenny” Sumner Jr., Partner, Romano & Sumner, PLLC — focusing on probate, guardianship, and estate litigation in the Houston and Sugar Land area.
To contest a will in Texas, you need a recognized legal ground — a real reason the will isn’t valid, not just a feeling that it’s unfair. The most common grounds are that the will wasn’t signed properly, that the person didn’t have the mental capacity to make it, that someone unduly influenced them, that it was procured by fraud or forged, that it was later revoked, or that it doesn’t say what it’s being read to say. Below is each one, in plain English.
One thing to think about before you start: winning a contest doesn’t always get you what you want. If knocking out the will means there’s no valid will at all, the property passes under Texas intestate succession law — which may or may not help you. Sometimes a successful contest just revives an earlier will. So it’s worth being clear about the outcome you’re after before you file.
Texas recognizes two kinds of valid wills. An attested (witnessed) will must be in writing, signed by the testator (or by someone else at the testator’s direction and in their presence), and signed by two credible witnesses, at least 14 years old, who sign their own names in the testator’s presence (Texas Estates Code § 251.051). A holographic will — one written entirely in the testator’s own handwriting — doesn’t need witnesses at all (§ 251.052). If those formalities weren’t met, the will can be challenged.
To make a valid will, the person (the “testator”) has to understand, at the time of signing, the nature and extent of their property, who the natural objects of their bounty are (their family, for example), and the effect of signing a will. If a medical condition, medication, or cognitive decline meant they couldn’t, the will may fail for lack of capacity.
This is when another person’s influence was so strong it substituted their wishes for the testator’s — a caregiver or relative steering a weakened, dependent person to rewrite the will in the influencer’s favor. Importantly, a person can have full mental capacity and still be unduly influenced. Texas courts weigh a set of factors drawn from Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963), including:
When the influencer was in a position of trust — a caregiver, or someone who handled the testator’s money or legal affairs — and the circumstances look suspicious, that combination can shift more of the burden onto them to explain what happened. That’s why undue-influence claims often turn on caregiver relationships.
Fraud can void a will when the testator’s choices were driven by a lie — say, someone convinces Dad that a daughter stole from him, and he cuts her out because of it. Forgery — faking the testator’s signature — is its own ground and, if proven, invalidates the will.
The testator has to actually intend the document to be their will. If they signed something believing it was, say, a power of attorney to help manage their affairs during an illness — not a will disposing of everything at death — there was no testamentary intent.
A will can be revoked, and a revoked will isn’t valid. Under § 253.002, that happens by a later will, codicil, or written declaration executed with the same formalities, or by the testator destroying or canceling the will (or having it destroyed in their presence). A contest may argue the will offered for probate was already revoked.
Sometimes the will is valid but is being read wrong — it leaves something to “my daughter-in-law,” but the son has since remarried, so who’s meant? A clear clerical error can also support a “rectification” claim to correct the document to match what the testator actually intended.
The grounds at a glance:
| Ground | What it means, in one line |
|---|---|
| Lack of due execution | The will wasn’t signed or witnessed the way Texas law requires. |
| Lack of testamentary capacity | The person wasn’t of sound mind when they signed. |
| Undue influence | Someone overpowered the person’s free will. |
| Fraud or forgery | The will was procured by a lie, or the signature was faked. |
| Lack of testamentary intent | The person didn’t intend the document to be their will. |
| Revocation | The will had already been revoked. |
| Misinterpretation / rectification | The will is valid but is being read wrong, or has a clerical error. |
These are the most common grounds, not the only ones. Which apply — and whether the evidence supports them — depends entirely on the facts.
A will contest is a civil case, so the standard isn’t “beyond a reasonable doubt” like in a criminal trial. It’s a preponderance of the evidence — more likely than not. And timing decides who carries that burden: once a will has been admitted to probate, the burden is on the person challenging it to prove it’s invalid. (We explain how that burden shifts depending on when you step in, and the deadline for stepping in, in our post on how long you have to contest a will in Texas.)
Having a ground is one thing; proving it is another. The evidence that tends to decide these cases:
This is also why moving early matters so much. Records get lost, memories fade, and witnesses move on — and preserving that evidence quickly is often the difference between a true case and a provable one.
A common fear is that the person who controls the estate’s money can simply outspend you. That’s real — but it isn’t always the end of the road. The right will contest can sometimes be handled on a contingency fee, meaning no money up front. We cover how that works in our post on how to contest a will when you can’t afford to.
We handle will contests and estate disputes in the Sugar Land, Fort Bend County, and Harris County probate courts — on both sides, challenging wills that don’t add up and defending wills against challenges that don’t hold. Winning one, on offense or defense, takes early, careful work: strict deadlines apply once litigation starts, and “throwing something together” at the last minute can sink a good case.
If you think a loved one’s will may be invalid — or you’re defending one that’s under attack — call Romano & Sumner at (281) 242-0995 for a free consultation, or reach us through our contact page. Bring any will, notice, or paperwork you have, and we’ll give you a straight read on whether you have a real ground and what to do next.
The most common are lack of due execution (improper signing), lack of testamentary capacity, undue influence, fraud or forgery, lack of testamentary intent, revocation, and misinterpretation. A feeling that the will is unfair, by itself, is not a ground.
No. Texas courts won’t set aside a will just because someone is unhappy with it. You need a recognized legal ground and evidence to support it.
Yes. Capacity and undue influence are separate. A person with full mental capacity can still be unduly influenced into signing a will that reflects someone else’s wishes rather than their own.
Once a will is admitted to probate, the person contesting it carries the burden, and the standard is a preponderance of the evidence — more likely than not.
Generally, two years from the date the will is admitted to probate, with narrow exceptions. Because the clock is often already running before you find out, don’t wait to ask.
This article is for general informational purposes only and is not legal advice, and it is not a promise or guarantee of any particular result. Reading it does not create an attorney-client relationship. Every situation is different. For advice about your circumstances, speak with a qualified Texas attorney.
Romano & Sumner, PLLC
