Are you suspicious that the will of a deceased relative does not reflect their true wishes on how their estate should be divided? If you feel there is something not quite right about a relative’s will, you can ask the probate court to invalidate the document or portions of it by contesting the will.

Challenging a Will in Texas

There are specific rules and statutes of limitations that apply when contesting a will. Not just anyone can contest a will in Texas. State law allows only “interested” persons to challenge the will. An “interested person” can be an heir, devisee, spouse, creditor, or any other person having a property right in or claim against an estate being administered; it also includes anyone interested in the welfare of an incapacitated person, including a minor. Under certain circumstances, the interested person only has two years from the time the deceased’s will was submitted to probate to file a challenge.

Some of the reasons for contesting a will include: the will is a fraud, undue influence was exerted on the deceased during the will writing process, or a situation in which there may be more than one will. One of the most common reasons given for contesting a will in Texas is the belief  that the person making the will lacked “testamentary capacity” when the will was made.

Testamentary Capacity – Being of Sound Mind

Texas state law requires certain standards of competency when it comes to filling out various legal documents such as contracts, wills, appointing guardians and providing consent for medical treatment.

In the state of Texas, testamentary capacity refers to the legal and mental abilities of the testator – the person who is writing the will or making changes to one. To meet the standards of testamentary capacity in Texas, to be of “sound mind,” the person making out the will must understand that they are making a Will, have a general idea of the extent of their estate and possessions, and be able to recognize the members of their immediate family. A person may lack testamentary capacity due to their age, mental illness or injury, or the influence of drugs or alcohol.

Contesting a Will Based On the Testamentary Capacity in Texas

Contesting a will based on the testamentary capacity of a relative when they made out their will can be a challenging undertaking. If you have grounds to suspect that your relative lacked the necessary testamentary capacity while making out their will, or that someone took advantage of them to exert undue influence or commit fraud during the writing of the will, it is important to seek the assistance of an experienced probate litigation attorney as soon as possible.

As stated above, there are very strict time limits and specific rules involved in contesting a will in Texas. A probate litigation attorney will be able to determine if you have grounds to contest a will based on testamentary capacity. A will may be contested before or after it has been probated in court.

A review of the will can reveal irregularities that may indicate the relative was not of sound mind when they made out their will. The next step will be to submit a will contest form to the probate court. If accepted, the court will set a trial date.

Under Texas law, the person contesting the will has the burden of establishing, by a preponderance of the evidence, that the will is invalid. As in other suits, a person who is a party to a will contest or proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent’s death is entitled to due process for witnesses and evidence and to be heard on the opposition. This includes all communications or records relevant to the decedent’s condition before the decedent’s death.

Your attorney will represent you at trial, calling witnesses and submitting evidence on your behalf. If the court agrees with your claim, it may declare the probated will or sections of it to be invalid and may recognize an earlier will as the “real” one.

Speak With an Experienced Texas Probate Litigation Lawyer

If you are considering contesting the will of a relative, hiring the experienced probate litigation lawyers at Morris Ostrom Law to protect your legal rights through the probate process may be the best course of action for upholding the wishes of your loved one. We have helped families successfully contest wills based on testamentary capacity, fraud, undue influence and wills that have been signed improperly.

To discuss a will contest or other probate issue, please call Morris Ostrom Law at (888) 869-9015 or email keith@mo-triallaw.com.