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Will Fights: Contesting a Will in Texas

Date Published: January 25, 2019


It's an all-too-common refrain: after a loved one dies, family squabbles erupt over money. Those disagreements can fracture a family and rip them apart. Will contests take a huge financial and emotional toll on family members.

To challenge a will, the contestant must be an 'interested person' and there must be valid grounds.

Interested Persons

Per Texas Estates Code §55.001, a "person interested" may contest a matter in probate court. "Interested person" or "person interested" means:

  • an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; or
  • anyone interested in the welfare of an incapacitated person, including a minor

(Texas Estates Code §22.018). The statute is elastic, and contemplates an evolving definition for the unique facts and circumstances of a particular case.

The interest must be a pecuniary one -- that is, related to money. The will contestant bears the burden to prove

some legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired or benefited, or in some manner materially affected, by the probate of the will

(Maurer v. Sayre, 833 S.W.2d 680, 682 [Tex. App. 1992]).

Basically, to contest a will in Texas the fundamental question is this: by contesting the will, would you receive more money? Some examples are:

  • an "at law" heir who would have inherited by intestacy, if the decedent died without a will
  • a child who might have received more under a prior will, but received less under a later will
  • a creditor of an heir who was omitted from a will
  • an omitted natural heir

Grounds to Contest a Will

At our law firm, the Law Office of Jaclyn Y. Roberson, PLLC, we have significant experience with representing clients involved in will contests. These are common grounds we see with will fights:

  • Error (mistake): the decedent made a mistake with how she prepared her will
  • Threat / intimidation: someone threatened the decedent into preparing her will
  • Duress: the decedent was confined, restrained or in some manner incapacitated
  • Undue influence: someone close to the deceased (for example, a caregiver, family member, friend, nurse, financial advisor, or lawyer) unfairly used his position of trust
  • Misrepresentation: misrepresentations that affect how the decedent prepared her will
  • Revocation: the decedent revoked the will being probated
  • Capacity: the decedent lacked capacity, or had diminished capacity, to understand the contents of her will
  • Fraud: misrepresentation
  • Improper execution: the will is not properly signed, witnessed or notarized (acknowledged)
  • Forgery: the will was forged

Mental Competency

Mental competency is also known as 'testamentary capacity'. A testator is presumed competent, and he can bequeath (give away) his property as he wants -- even if someone disagrees whether the decedent was fair, made the right choice, etc. A decedent can give more, less or exclude an heir. He can give his fortune to a charity or a new wife. Courts safeguard this concept of free alienability of a person's property. However, the decedent must be competent.

What does it mean to be mentally competent? We hear the buzzwords "of sound mind". When the decedent made his will, did he know what he was signing? Did he know the importance? Was he aware of the property he owned, his financial circumstances, and understand family relationships?

Was the testatrix suffering from alcohol or substance abuse? Mental illness, such as depression, bipolar disorder, schizophrenia, dementia? Did she have delusions?

To prevail in a will contest, the contestant must prove that the decedent lacked testamentary capacity.

Warning Signs

Interestingly, many family fights over wills don't just come 'out of the blue'. We see certain recurring patterns, including the following:

  • significant economic differences: one beneficiary may be affluent, while others struggle from paycheck to paycheck. In that case the rich beneficiary feels no urgency to sell an estate asset or rush the estate administration process, but other beneficiaries feel the opposite pressure
  • jealous siblings: sometimes brothers and sisters have long-simmering feuds, jealousy or other dynamics which have festered, which now spillover into trying to 'even the score'
  • multiple executors: even if executors usually get along, they may not see 'eye to eye'. Logistical challenges occur when multiple representatives live far from each other, or with respect to their availability
  • unreasonable or irrational beneficiary: compounded when a beneficiary has financial, emotional or neurological difficulties, or has substance abuse or addiction issues
  • unequal inheritance or advancements: if a decedent's estate is not equally divided among natural heirs (e.g., children), or if one beneficiary receives an advance of her inheritance, then this often leads to family fights over the decedent's will
  • undue influence: family, friends and caretakers can unduly influence a decedent, especially later in life. This is also known as financial elder abuse
  • disinheritance: cutting someone out of the will
  • estrangement: an heir or beneficiary has been out of touch for a long time with the decedent; perhaps he has not called or visited or spoken in some time. Hurt feelings and resentments abound
  • blended families and second marriages: with multiple marriages, step-children, second spouses or a young bride, tempers can flare and emotions are volatile

Will Contests Exact a Toll

If you believe you have grounds to contest a will, or if you need to defend yourself in a will contest, you should consult with an experienced attorney as soon as possible. These court cases take a financial and emotional toll. They can tear apart already-volatile family relationships. You need a seasoned will contest lawyer to help you determine what your legal fees will potentially be, the likelihood of success, and the fallout among family members. Once engaged for battle, there may be no turning back, and familial bonds may be irrevocably broken. Your elder law attorney can also help you resolve your case without going to court, if feasible. Often settlement is in everyone's best interests.

The Law Office of Jaclyn Y. Roberson, PLLC is a family law and estate planning firm based in San Antonio serving the citizens of South and Central Texas.