Adults have the ability to make their own Will to name who will receive their property upon death. There may be circumstances, however, when the process of making a Will wasn’t done properly. Interested persons may wish to step forward and challenge, or contest, the Will, claiming it is invalid. In this article we will discuss Will contests in Texas. Austin probate lawyer Farren Sheehan can help answer questions and assist families with common issues encountered in Will contests, how to bring such actions, and proper grounds for challenging a Will.
Who May Contest a Will in Texas
Under Texas law, any interested person may contest a Will. While “interested person” is defined as an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered, cases discussing standing have narrowed those able to contest Wills to persons who have a pecuniary or justiciable interest that will be affected by the probate of the Will. The person wishing to contest a Will has the burden of proving that he or she meets the definition of interested person to have standing to contest probate of a Will.
No-Contest or Forfeiture Clauses
A person considering contesting a Will should first check to see if the Will contains a forfeiture clause or no-contest clause, and if so, what impact that might have on him or her if the Will contest is not successful.
Under Texas law, a person may include a provision in his or her Will that would cause a forfeiture of or void a devise or provision in favor of a person for bringing any court action, including contesting a Will. Section 254.005 of the Texas Estates Code provides that these no-contest clauses are enforceable unless in a court action determining whether the forfeiture clause should be enforced, the person who brought the action contrary to the forfeiture clause establishes by a preponderance of the evidence that: (1) just cause existed for bringing the action; and (2) the action was brought and maintained in good faith.
Generally, courts do not favor forfeiture clauses. No-contest clauses are strictly construed, and courts should find breach of no-contest clauses only when the acts of the parties come within the clause’s express terms.
Grounds for Contesting a Will in Texas
To challenge a Will, a contestant will have to plead the grounds on which he or she bases the challenge. The following grounds for contesting a Will are recognized by statute and case law in Texas:
- Revocation (by a physical act or by execution of a subsequent instrument)
- Lack of testamentary capacity
- Improper execution
- Undue influence
Proceedings to Contest a Will
A Will may be contested before or after it has been probated in court. Generally, the proponent of a Will has the burden of proof to prove most issues as to the validity of a Will prior to the Will being admitted to probate.
If a Will has already been admitted to probate, a contest must generally be filed within two years of the date the Will was admitted to probate. After a Will has been admitted to probate, the contestant has the burden of establishing by a preponderance of the evidence that the Will is invalid.
How a Probate Attorney Can Help
Someone considering contesting a Will should hire a probate attorney to review the Will first. The probate attorney will carefully check to see if the potential contestant is a beneficiary of the proposed Will, whether the Will includes a no-contest clause and, if so, advise her client of the effect of the contest on his or her bequest under the Will. A probate attorney will also review the possible grounds for a Will contest, draft pleadings, and represent her client in court in a Will contest if the client desires to contest the Will.
Attorney Farren Sheehan is experienced in drafting Wills and assisting clients in Will contests. Call the office of Sheehan Law, PLLC with any questions you have regarding contesting a Will in Travis county or the Austin area and we will be happy to set up a consultation to discuss.
- Tex. Estates Code Ann.