FAQS PROBATE AND ESTATE LITIGATION

There are a number of ways to challenge the probate of a Texas will, otherwise known as a "will contest." Our attorneys represent clients in filing will contests as well as defending will contests. Many of the questions we hear frequently are answered below.

When must a will be filed for probate in Texas?

The Texas Estates Code requires a will to be filed for probate within four years of the death of the testator. However, a will can still be filed after that time if the person filing the will was not "in default" in not filing it within four years. Whether a person is "in default" is a grey area which can be the subject of litigation. Texas courts have permitted wills to be offered as a muniment of title more than four years after death upon the showing of a reasonable excuse by the proponent for failure to offer the will earlier.

Who can contest or challenge a will?

For purposes of a will contest, a "person interested in an estate" may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue.” A "person interested" means an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered. In the absence of such an interest, the courts consider the contestant “a mere meddlesome intruder” with no right to challenge the will.

How long do I have to contest a will in Texas?

A Texas will can be contested before or after is has been admitted to probate, but typically it is contested after it is filed. In general, a will contest must be filed within two years from the date the will is admitted to probate. If you were a minor at the time the will was admitted to probate, then you must file the will contest within two years after you reach the age of majority. However, in very limited circumstances, if you have a claim for forgery or fraud, you have two years from the date of discovery to file a will contest.

Was the will executed with the necessary formalities?

The Texas Estates Code recognizes two types of wills—attested and holographic—and sets out the formalities necessary for each type of will to be valid. To admit a will to probate, the proponent of the will must prove that the testator complied with the applicable statutory formalities and that, at time of executing the will, the testator had legal capacity, testamentary capacity, and testamentary intent to make the will. But if the will is self-proved, no further proof that it was executed with the formalities and solemnities and under the circumstances required to make it a valid will are necessary. A written will or any clause thereof shall only be revoked by a subsequent will, codicil, or declaration in writing, executed with like formality.

What does it mean to have testamentary capacity (the capacity to make a will)?

A testator has testamentary capacity when he has sufficient mental ability to understand he is making a will, the effect of making a will, and the general nature and extent of his property. The testator also must know his next of kin and the natural objects of his bounty, the claims upon them, and have sufficient memory to collect in his mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them. The pivotal issue is whether the testator had testamentary capacity on the day the will was executed. However, evidence of the testator's state of mind at other times can be used to prove his state of mind on the day the will was executed provided the evidence demonstrates a condition affecting his testamentary capacity was persistent and likely was present at the time the will was executed.

How do you prove the lack of testamentary capacity based on circumstantial evidence?

To mount a successful challenge to the testamentary capacity of a testator, based on circumstantial evidence at times other than the execution of the will, the challenging party must establish: (1) that the evidence offered indicates a lack of testamentary capacity; (2) that the evidence is probative of the testator's capacity (or lack thereof) on the day the will was executed; and (3) that the evidence provided is of a satisfactory and convincing character, because probate will not be set aside on the basis of evidence that creates only a suspicion of mental incapacity.

How do you prove undue influence?

To establish undue influence, a contestant must show: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.


The Texas Supreme Court has laid out a non-exhaustive list of ten factors courts should consider in assessing whether undue influence exists:

(1) the nature and type of relationship existing between the testator, the contestants, and the party accused of exerting such influence;
(2) the opportunities existing for the exertion of the type or deception possessed or employed;
(3) the circumstances surrounding the drafting and execution of the testament;
(4) the existence of a fraudulent motive;
(5) whether there had been a habitual subjection of the testator to the control of another;
(6) the state of the testator's mind at the time of the execution of the testament;
(7) the testator's mental or physical incapacity to resist or the susceptibility of the testator's mind to the type and extent of the influence exerted;
(8) words and acts of the testator;
(9) weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise;
(10) whether the testament executed is unnatural in its terms of disposition of property.

What happens if someone objects to the Will?

An objection to a will, also known as a "will contest," is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.

To contest a will, a party must have legal “standing” to raise objections. This can occur when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Executor.

Can an Executor or Administrator recover attorney's fees in probate litigation?

The Texas Estates Code provides that a representative of an estate can recover necessary and reasonable expenses incurred by the representative on behalf of the estate, including attorney’s fees. The Texas Estates Code also provides that an Executor or Administrator of an estate “shall be allowed out of the estate the executor's or administrator's necessary expenses and disbursements in those proceedings, including reasonable attorney's fees” for the defense of the will or alleged will, or for the pursuit of any proceeding in good faith and with just cause on behalf of the estate, whether successful or not.

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