In most instances, reviewing a deceased loved one’s will is a relatively uneventful affair. Many deceased individuals will have previously discussed their wishes for their estate with their family members and heirs, or distribute their assets equally among those family members left behind.
In rare instances, however, the details of a will may be surprising, confusing, or contrary to prior discussions that you may have had with the decedent about how their estate should be distributed. In these types of situations, it is not uncommon for family members or heirs to suspect that a will has been forged or altered.
If you are concerned about the legitimacy of a will, the first step is to make an initial effort to investigate whether forgery might have occurred. You need not interview everyone involved with the will or take steps that will arouse the suspicions of others, but you must have more than a mere disagreement with the substance of the will to contest its legitimacy.
For example, if you saw prior versions of the will that looked very different from the final version that has now appeared, or you had conversations with the decedent that directly contradict the substance of the will – these types of issues can form the basis for a good faith challenge to the will.
Additionally, before considering a will challenge, you must make certain that you have actual standing to contest it. Simply because you disagree with the content of the will or concerned about its legitimacy is not enough to bring a legal challenge. Instead you must be someone who is aggrieved by the illegitimate will, or would be harmed if the will is accepted. If you are not yourself aggrieved, you might want to alert an aggrieved individual to your suspicions.
In order to contest a will, you must engage in litigation and it is important to hire a probate or estate litigator to assist you. How your will contest will be filed depends on where the probate process is for the will at issue. If the will that you are concerned about has not yet entered probate, you can file what is known as a general denial of the will.
A general denial essentially puts the burden on the party seeking to use the will to prove that it is a legitimate will. Both sides will be allowed to present evidence of the legitimacy and illegitimacy of the will, and a judge will decide.
If the will has already been through probate then you must file a post-probate petition that includes your allegations that the will is illegitimate and the basis for arguing illegitimacy.
Under Texas law, plaintiffs have two years to bring a will contest before their claim expires. This means that if you have reason to suspect a will, you must be fairly prompt in your investigation and filing in order to preserve your claim. This clock typically begins to run from when the will was admitted into probate.
However, in some circumstances the “discovery rule” might apply in situations of forgery or fraud. The “discovery rule” means that the statute of limitations does not begin to run until the fraud has been “discovered” or reasonably could have been known by the plaintiff. So if the forgery is unknown to you (perhaps you were not able to look at the will) your claim does not begin to run until you learn of the fraud or have reason to suspect it. Caution must be used in these situations, as the mere fact that a will has been admitted to probate is sufficient to satisfy the discovery.
Many wills contain a “no contest clause” which states that the will cannot be contested. While these clauses are frequently included in wills, they can easily be circumvented where there is a good faith basis for the contest.
No contest clauses are meant to prevent individuals from contesting a will simply because they do not like the way that assets are distributed, or how they are treated in the will. But where there is a legitimate claim that something is wrong with the will, or that the will is invalid, courts can overrule the no contest clause and allow a will contest claim to be raised.
If you are successful in your will contest and the court agrees that the will at issue has been forged, the next question is what happens to the estate. Clearly the estate must still be distributed even without the invalid will. In this situation, a probate court can do one of two things.
First if there is a prior existing will that was executed before the illegitimate one, the court may be willing to recognize this will and use it in the probate process. This depends on the circumstances of that will, whether any party contests that will, and how reliable the prior will is deemed to be.
Alternatively, the court can treat the estate as if no will existed and instead distribute the estate assets according to Texas’s standing intestacy laws. This is how estates are normally handled when no written will exists.
Although wills are typically prepared with the utmost caution and thought, circumstances can arise where wills are altered by the conduct of a third party who hopes to change the way that an estate is distributed. If you have reason to believe that a loved one’s will was altered through forgery or fraud, you may be able to bring a will contest claim to dispute the validity of the will.
The first step in any will contest process is to consult with an experienced probate litigation attorney. At Romano & Sumner, PLLC, our wills and trusts attorneys have years of experience working with Texas residents to draft enforceable wills, and also know how to identify and contest wills that may be forged or altered. We pride ourselves on serving Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
Romano & Sumner, PLLC