Contesting a Will
A will is a document that sets out a person's declaration of how he (the "Testator") desires his property to be disposed of after his death. When an individual dies in the State of Texas with a will, the will is submitted to the Probate Court. Probate is the process by which a will is legally recognized.
For a Will to be valid in the State of Texas certain requirements must be met.
For instance, does the Testator have capacity to sign the Will. This means does the Testator know the extent of the property, does the Testator know who their heirs are, does the Testator know they are making their Will, does the Testator know and understand what they want to happen with their property when they die.
In addition, a Will must meet certain formalities when it is signed. The Testator must sign in the presence of 2 witnesses and a notary. The witnesses must sign in the presence of each other. The signature must be that of the Testator’s. While these formalities must be met, there are always exceptions.
For a will contest in Texas, any “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 in an estate” can be defined in many ways.
In a Texas will contest, any person interested in an estate may contest estate proceedings which includes filing a will contest.
In general a Texas will contest can be filed as a result of lack of testamentary intent, lack of testamentary capacity, the exercise of undue influence, and/or that the will was not executed with the necessary elements, or formalities, as required by Texas probate and estate law. A “person interested in an estate” can be defined in many ways.
The following are a few common examples we encounter with a family member, friend, care worker, neighbor, or others exercising undue influence on an individual:
- Taking control of finances
- Receiving financial “gifts”
- Isolation of the individual
- Moving into the dwelling of the individual
- Taking the individual into another dwelling
- Obtaining a power of attorney for the individual
A Will can be contested before or after it is admitted to probate. Under Texas laws, you only have two years to file a will contest after the will has been admitted to probate.
If you feel you could be an “interested person,” or if you feel any of the above could be applicable to your situation, please contact our office.