Will Contests

     In Texas, there are very specific rules about contesting wills.  Generally speaking, wills are assumed to be valid and there is a bias towards following the desires of the deceased.  There are very specific rules and reasons a will can be contested and it is important to make sure that a will contest falls into one of these categories.  Also, there are strict time limits that need to be followed in order to avoid having a case thrown out of court.

     A will can be filed for probate within four years of the death of the testator, or decedent.  A will contest must be filed within two years of the probating of the will.  There are exceptions to these rules but generally speaking a will contest will be thrown out of court if it is brought too late.  Not to mention, the difficulties that can exist in cases where money has been spent or has disappeared.

     One of the most common ways to have a will thrown out is to argue that the decedent did not have testamentary capacity.  Basically, that means that the testator had to know what was going on and have been sane.

     Legally the requirements to make a valid will are:

  1. To be able to understand the business in which they are engaged,
  2. understand the effect of the act of making the will,
  3. know the general nature and extent of the property,
  4. recognize next of kin and the “natural objects of his bounty” (close relatives) and
  5. have a good enough memory to perceive their obvious relation to each other in order to form a reasonable judgment.

     Testamentary capacity is never presumed.  There is a requirement that “sound mind” be proved.  However, a self-proving will and the accompanying affidavits will supply some evidence of testamentary capacity and the will can be admitted to probate without further evidence on this issue.  The affidavit may be rebutted by other evidence of lack of capacity

     Testamentary capacity goes beyond the capacity to contract.  A person is presumed to have sufficient capacity to enter into a contract.  No presumption exists for the capacity to make a will.

     Other ways to contest a will are to claim “Fraud in the Inducement” or “Undue Influence“.  In Texas they are one and the same but in other states there are subtle differences which can be important because a will contested under one theory when, in fact, it should have been contested under the other theory can result in an otherwise valid case being thrown out.

     To set aside a will on the basis of a claim of undue influence or “Fraud in the Inducement” the person contesting a will must prove the existence and exercise of an influence upon the testator which operated to subvert or overpower the testator’s mind at the time that the will was executed.  It also must be demonstrated that the execution of the will in its actual form would not have occurred if it were not for the undue influence.

     Having one’s last wishes carried out without a fight between family and friends is an important consideration when creating a will.  Often, smart estate planning can avoid costly lawsuits and additional stress and family heartache.  Part of planning an estate is making sure that estate taxes are kept to a minimum and part of estate planning is ensuring that one’s last wishes are carried out.