Your will represents your final wishes for how you would like your remains and property handled upon your passing. Often, what we want does not make all of our loved ones happy and leads to discord. You may be anticipating this could be possible in your situation. In that case, our Texas estate planning attorney can help you understand measures you can take to avoid your will being contested.
What Does it Mean to Contest a Will?
Contesting a will refers to filing an objection to a person’s will in Texas probate court because of an alleged defect or serious issue with how the will came about. This can be a lengthy and expensive process and hold up the administration of the person’s will until the court clears things up.
A person cannot contest your will simply because someone does not like what it says. However, it can be challenged for four main reasons and as long as the statute of limitations has not passed. In Texas, a will must be contested within two years from the date that the will enters probate and an executor is appointed.
Reason 1: Lack of Capacity
One of the most common reasons a person uses to contest a will is that you did not understand what you were signing. To execute a will, a person (testator) needs to have “testamentary capacity,” which refers to the legal concept that the person signing a will needs to understand the overall value of their assets and who should inherit them.
If the individual does not understand the consequences or gravity of signing a will, this is problematic. It can be used to argue that the testator did not know they were signing a will. It can be used to argue that the testator may not have realized sections of a will had been changed or that they were giving assets to someone to whom they would not have otherwise given these things. Lack of capacity has to be proven by the person alleging it.
Reason 2: Undue Influence
Another argument is that a third party may have taken advantage of you and convinced you to change your will or enter into a will. It is often claimed that this person may have acted coercively to persuade you to sign a will. For example, they may have threatened you by withholding care or access to loved ones until changes to a will occurred or until you signed a will with specific provisions.
Just as with lack of capacity, the person alleging it has to prove it. They must show, by a preponderance of the credible evidence, that a particular person engaged in pressure, manipulation, or other tactics to make you change their will in a way that you would not have otherwise done so.
Reason 3: Your Will Was Not Properly Executed, Written, or Fails to Comply With Legal Requirements
Texas law requires a will be:
- In writing;
- Signed by: the testator in person;
- Or, signed by another person at the instruction of the testator in the testator’s presence; and
- Attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
There are exceptions to these requirements, which is beyond the scope of this writing. An improperly executed will is one of the most common and successful reasons a will is deemed invalid. In addition, wills are subject to laws and other rules regarding how they have to be drafted and handled. If a will is not prepared correctly or does not comport with the law, a court may invalidate part or all of it.
Reason 4: Your Signature Was Forged
Finally, a contester may claim that someone forged your will. Once again, the person contesting your will has to prove it. They would have to hire a handwriting expert to do an analysis and then testify that your signature was forged based on other samples of your handwriting. If you have a question about how your will and if it could survive a will contest, contact us today to schedule a consultation.