Legal actions contesting wills don’t just happen in TV soap operas and Tom Clancy novels; they occur in real life, both within Texas, and beyond. They have the potential not only to disrupt family relationships, but also to affect adversely the critical financial affairs of all who are involved. The executor named in the “suspect” will is usually unfamiliar with general estate administration procedures. He or she may be easily intimidated by the prospects of a nasty court battle. It is the executor’s duty, however, to defend the will and, in virtually all cases, the executor should develop strategies to defend the testator’s will. Here are three tips to consider as you develop that strategy.
The first tip is so obvious that it’s often overlooked. You may already be working with the attorney that drafted the testator’s will that is being contested. You say to yourself, “I’ve got the attorney issue handled.” But do you? Recognize that three common objections brought forward to contest the will are:
The party contesting the will may call the attorney that drafted the will as a witness. Even if the attorney is called to testify by the will contestant, it is likely that you will need to utilize the attorney’s testimony. In virtually all situations, an attorney cannot both testify and represent a party in a lawsuit. As the executor of the contested will, you will ordinarily need independent, experienced counsel to defend.
While you should not do this on your own, at your attorney’s direction, you should begin to assemble the evidence that you will need to defend the case. If the contesting party is questioning the mental capacity of the testator, you will likely need testimony by the deceased’s treating physicians, family, friends, or other individuals who observed the deceased at the time, or near the time, that the will was executed.
To the extent that the contesting party has alleged that you or others exerted undue influence on the deceased prior to the execution of the will in question, you should begin to anticipate the evidence that the opposing party will need to assemble against you. In a recent Texas appellate decision, In re Estate of Kam (Feb. 29, 2016), the court held that in order to establish undue influence, a will contestant must show:
It is important to note that the court said that just because there was evidence that the testator was in a weakened state, that did not, in and of itself, constitute evidence of undue influence. Moreover, the court held that in most instances, the will itself could not be considered evidence of undue influence. According to the court, the fact that a testator chose to distribute his estate among a number of children or relatives, making one bequest larger than another, or the fact that he or she chose to exclude certain children from a will while providing for others was not in and of itself evidence of undue influence. The court said that, after all, a person of sound mind has the right to dispose of his or her property in the manner that he or she wishes.
Defending a contested will is almost always a complex process that requires the efforts of one or more skilled and experienced estate attorneys. The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients. We have successfully represented parties in contesting Texas wills, and we have assisted executors and trustees in defending against such contests. We have the extensive litigation experience to take your case as far as necessary.
At Romano & Sumner, we pride ourselves not only on our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.
Romano & Sumner – Sugar Land, TX Attorneys