Will Contests under Texas Law: Questions & Answers

Will Contests under Texas Law: Questions & Answers

If you or a loved one needs legal representation with a will contest or other probate or estate administration dispute in Texas, you should contact an experienced attorney for guidance and direction. DallasProbateAttorneys.com will contest attorneys can help explain your legal rights and options and give you peace of mind in knowing that a trained professional is in your corner doing the best they can to advance your interests. Reach out to DallasProbateAttorneys.com by calling (972) 991-7700 or contacting us online.

What Is A Will Contest?

Although most probate cases proceed uncontested, small to complex disputes can arise before or during the probate process. If the deceased person had a will, and a personal representative, beneficiary, or heir found a problem with that will, there may be a will contest. Will contests are highly complex proceedings that require knowledge of Texas probate law, called the Texas Estates Code, and court procedure.

Standing And Burden Of Proof

The individual bringing a will contest is called a “contestant.” If you plan to contest a will, you must know some important things before starting. First, you must know whether you have the standing to file a claim. “Standing” refers to a person’s right to bring a claim.

In will contests, those considered “interested persons” have standing to challenge the will. Interested persons include

  • Heirs
  • Spouses
  • Devisees named in the will
  • Creditors
  • Any other person who could have a property right in the estate

For example, if you are a spouse or child of the deceased person, but the will surprisingly leaves considerable or all property to a caregiver, you would likely have the standing to contest the will’s validity.

Second, you need to know if the statute of limitations has passed. An objection to a will must be filed within two years after the will has been submitted to the probate court. The best time to file a claim is at the beginning of the probate process.

Dallas will contest attorney

Third, it is crucial to know who has the burden of proof and the standard. Suppose the will has not yet been admitted to probate. In that case, the person waiting to probate the will, usually the nominated personal representative, has the burden of proving the will’s validity. However, if the will has already been probated, the burden of proof falls on the person contesting the will. If you contest the will, you must show a judge that the will is invalid and, as a result, should not be allowed (probated as it is written).

The standard of proof is “preponderance of the evidence.” This just means that as the contestant, you have to show that, more likely than not, the will is invalid. If the opposing party has the burden, they have to show that, more likely than not, the will is valid.

Reasons To Contest A Will

  • Lack of testamentary (mental) capacity
  • Undue influence
  • Duress
  • Improper will formation
  • Ambiguous use of language
  • Mistakes

Testamentary Capacity

When creating a will, a testator must make numerous decisions about property and the beneficiaries receiving it. Given the importance of these decisions, Texas Estates Code requires, at a minimum, that testators be of sound mind (competent) and one of the following:

  • At least 18 years old
  • Currently or previously married
  • Member of the United States Armed Forces or United States Maritime Service

Sufficient testamentary capacity also requires a general understanding of the kind and amount of property in the estate and knowledge that the document signed is the last will and testament responsible for distributing property to beneficiaries. Finally, the testator should have sufficient memory to understand how the contents in the will relate to the estate. A testator who meets all requirements for testamentary capacity has the adequate mental capacity to execute a will. 

Disputes often arise when beneficiaries or heirs believe that the testator was not of sound mind. Sometimes it is true that testators lack mental capacity, and DallasProbateAttorneys.com will dispute attorneys have successfully won these claims for many clients. Other times, beneficiaries or other interested parties assume that the testator did not have mental capacity due to dementia, mental illness, or other brain diseases. While brain disorders can undoubtedly be reasons for lack of capacity, proving the testator’s brain disorders may not be enough to win a claim based on lack of mental capacity.

Because the standard for mental capacity when entering a will is relatively low, it is difficult to prove that a testator lacked a sound mind. If you are involved in a probate case and believe the testator may have lacked mental capacity, the experienced will contest lawyers at DallasProbateAttorneys.com are ready to review your situation, explain the law, and build a strong case to help get you the best results possible.

Undue Influence

Under normal and appropriate circumstances, a will reflects what a testator truly wants for the distribution of their money, important family heirlooms, home, and other estate assets. Wills should be created and signed freely and voluntarily, ideally, along with the support of family and friends. If you believe a will was influenced heavily and improperly by another person, you might have an undue influence case.

Will contests and disputes under Texas Law

A claim of undue influence rests on the idea that a beneficiary overcame the testator’s free will using threats or other improper actions. If the will has already been probated but is still within the two-year limitation period, the burden will be on you to prove that undue influence occurred. These claims are often difficult to prove because acts of undue influence are typically secretive and manipulative. More so, actions of undue influence could appear questionable, and there often is no direct evidence that it happened.  

Contesting a will for undue influence requires proof that the deceased did something more than merely request that the beneficiary participate in drafting the will. Additionally, you would need to prove that the beneficiary had more than opportunity alone to exert influence over the deceased. Finally, you need to prove:

  1. Existence and exertion of influence;
  2. The influence undermined authority or overpowered the mind of the testator when the will was created; and 
  3. The testator would not have made the will as written without the influence.

Courts have ten factors to consider in making their decision on an undue influence claim:

  • Relationship between the testator, contestant, and the party accused of undue influence
  • Opportunities that existed for the accused to use deceptive actions
  • Circumstances surrounding the will’s creation
  • Whether a fraudulent motive existed
  • How often the testator was under the control of the accused
  • Testator’s mental state at the time of the will
  • Testator’s mental and physical incapacity to resist the influence or susceptibility of the testator’s mind to the type and extent of the influence used
  • Testator’s words and actions
  • Whether the testator’s mental and physical weakness was the result of illness, disease, or something else
  • Whether the will as written is unnatural in how it distributes property

Although the above factors are not hard and fast rules, a successful claim will address every element and how they apply to the claim. Litigating a successful claim for undue influence requires knowledge of Texas probate case law and statutes. If you want to know whether you should bring an undue influence claim, or you have other questions relating to a will contest, contact our team for a consultation and complete review of your case. 

Improper Will Formation

Like all legal documents, wills are subject to specific rules. Because of the impact on beneficiaries’ lives, Texas law requires that a will complies with all the following requirements:

  1. The will is in writing
  2. The will is signed by the testator or someone on behalf of the testator
  3. The will has two attesting witnesses

Signed By The Testator

In most situations, the testator is the person who signs the will. However, there are situations where the testator is physically unable to sign the will. In these situations, a third party may sign for the testator as long as the signing occurs both:

  1. In the testator’s presence
  2. Under the testator’s direction

The third-party requirements are not always as straightforward as they might appear. If you question whether a third-party signature meets the above two requirements, our lawyers can assess the facts of your case and discuss whether you have a claim. 

Attested By Witnesses

To be attested by witnesses, the testator must sign the will in the presence of the witnesses, and the witnesses must sign in the testator’s presence. However, the witnesses do not need to sign in each other’s presence. Witnesses do, however, need to be at least 14 years old, and they must be credible. Credibility can mean different things, but at a minimum, witnesses should be of sound mind. Beneficiaries should not be witnesses, and if they do sign, they may not inherit under the will. 

If a requirement for will formation is successfully disputed, the court may not admit the will to probate. If it is not admitted, the testator’s estate would be distributed under Texas laws on intestate succession.

Ambiguous Language

A well-drafted will has clear and direct language that outlines a testator’s intentions. Unfortunately, sometimes wills contain ambiguities. This includes:

  1. Patent ambiguity: The words written on the page are vague. An example of this could be, “I devise two of my antique cars to my son and four antique cars to my daughter.” A dispute could arise over which antique cars go to which child. 
  2. Latent ambiguity: The words written on the page are not vague but carrying out the terms creates an ambiguous meaning. An example could include, “I devise $1,000 to my friend, Laurie S.” We can see how much money should go to Laurie S. However, the testator has two friends named Laurie Sanderson and Laurie Smith. Both friends named Laurie could dispute who the testator meant to devise the money in her will.

In both cases, probate courts will generally allow additional evidence to clear the ambiguous language. 


Usually, language in a will is unambiguous, and the will proceeds through probate uncontested. Still, there are instances where a will’s language is written clearly but still contains a mistake. For example, a will could devise “400” acres of land to a beneficiary, but the testator only ever had 40 acres of land. A more complex case would arise if the will devised “60” acres of land to a beneficiary, but the deceased owned 80 acres of land. In either circumstance, beneficiaries entitled to the property would certainly be surprised if they received far more or less land than they initially believed.

These kinds of clerical errors are typically a result of poor drafting and proofreading. The number of clerical errors is reduced because the law allows personal representatives to file a petition to modify or reform the will. The personal representative has to show that the will as written is mistaken. The standard of proof is called “clear and convincing evidence. It requires a higher standard than for other will contests. A successful claim would show based on good evidence that it is highly probable or reasonably certain that the will’s language as written is a result of a mistake. Using the examples above, the mistake itself can partially determine how simple or difficult it is to prove the mistake. For example, if the testator only had 40 acres, but the will said “400,” the claim can be more credible since less, rather than more acreage, is being requested for modification. The modification or reform claim could be harder to prove if the beneficiary is requesting more property or if multiple beneficiaries dispute the claim. 

Copies Of Wills

After a testator executes a will, the original can be sent to a County Clerk, remain in an attorney’s office for safekeeping or, as in most instances, be retained by the client. Having the will in one of these places makes it easy to find when necessary. Unfortunately, sometimes originals are lost, and copies of wills are not considered equivalents under the law. When the original is not found and was last seen with the testator, the law presumes that they destroyed the will. The court also presumes that the testator intended to revoke it. 

You can provide evidence that shows the deceased still recognized and supported the contents of the will and its beneficiaries. If no will can be produced, courts require considerable evidence to prove the existence and contents of the will. This kind of claim can be pretty difficult to prove, and it can be more costly and time-consuming. 

No Contest Clauses

Testators can include “no contest clauses,” known as forfeiture clauses, in their wills to prevent litigation and interpersonal family disputes. Under Texas law, these provisions can result in a beneficiary forfeiting their inheritance or other property named in the will. These clauses are enforceable except when the contestant can prove that, more likely than not:

  1. There is just cause (good reason) to contest the forfeiture clause
  2. The contest was brought in good faith

Courts will often reject the no contest clauses because of the just cause and good faith exceptions. Still, even if a judge finds that you have filed a claim in good faith and with just cause, it does not mean that you have won the will contest. It only means you will not lose the inheritance that the will lists for you. 

If you want to contest a will, it is crucial to know whether a no contest clause exists. There is a significant difference between believing that a will’s contents are unfair to you and believing that they result from something more sinister. Consulting with a Texas will dispute lawyer enables you to better understand whether to bring a claim.

Hiring A Texas Probate Attorney

The experienced probate attorneys at DallasProbateAttorneys.com understand that probate is more than a legal procedure. Grief for the deceased, family disputes, and family money, can alone determine the difficulty of the process. Even under the best of circumstances, the probate process can be tiring, but we do the heavy lifting for you. Although will contests can prolong the time it takes to complete the probate process, our law firm is committed to resolving disputes as efficiently as possible and reducing time and money spent. We are here for you and will work tirelessly to help get you the best result possible. If you have questions or are ready to begin a will contest, please call DallasProbateAttorneys.com at (972) 991-7700 or contact us online.

Will Contests: Testamentary Capacity And Undue Influence

Have you been left out of your parents will? Are all of your siblings in the will, but your name just isn’t there? Or are you a parent wanting to ensure your final wishes are followed, even if that includes leaving out a child? A will may be contested or challenged if the testator (the person creating a will) did not know what they were doing when creating the will or if another individual influenced them. If you feel an individual did not have the proper mental state to create a will or that an outside source influenced them, you may be able to challenge the will.

Lack Of Testamentary Capacity

To create a valid will under Texas law, the will’s creator (called a testator) must have testamentary capacity. Testamentary capacity is the ability to make a valid will. There are two prongs to having testamentary capacity. The first is that the testator must be old enough to enter into a will legally. The second is the testator must have a specific mental ability to create the will. The testator may have to meet specific requirements to determine mental capacity when they sign their will. To meet these requirements, the testator must:

  • Understand they are making a will
  • Understand they are getting rid of their property after death
  • Know their property in a general sense
  • Be able to identify their children or other close family members; and
  • Be able to know all of these items simultaneously so they can make a reasonable decision about them

If the individual making the will meets these conditions, they most likely will have the testamentary capacity to create the will.

Who Can Bring A Claim Of Lack Of Testamentary Capacity

Any person who might have a claim to the deceased’s property may be able to contest the will for lack of testamentary capacity. In these situations, the person contesting or challenging the will must show that the individual creating the will lacked the capacity to know the necessary things on the day the document was signed. An experienced probate attorney can help you walk through the entire process of contesting a will due to a lack of testamentary capacity.

Undue Influence

Another way to challenge a will is by alleging that it was entered into under undue influence. Undue influence is when someone coerces or sways the decisions of the testator. The testator then does some action that benefits the person doing the coercing such as transferring property or giving them a larger share of the estate. This is commonly seen with caretakers.

In Texas, undue influence is determined by a three-part test:

  • Must be an exercise of influence over the individual
  • The influence must overpower the individual’s mind
  • The individual must make changes to their will, which would not have happened without the accused influencer

Each of these three parts must be met to make a successful claim for undue influence. This test is used to prove that another individual’s influence overcame the testator’s mind, causing them to give a more significant benefit than what the testator would have done on their own.

Who Can Bring A Claim Of Undue Influence

Under Texas law, any interested person in an estate can contest a will for undue influence. An interested person may be a child or a beneficiary of the estate. If a beneficiary feels that they may have a claim for undue influence, they should bring the claim within two years to ensure their claim can be heard. There are specific situations where this period can be extended.

If you are looking to bring a suit for undue influence, you will have to prove that the undue influence occurred. In many states, there is a presumption that undue influence occurred if an elderly individual made changes while in a vulnerable state. This presumption does not exist in Texas and will have to be proven by the beneficiary.

Factors For Undue Influence

When an undue influence claim is brought, the court will consider many factors to determine if there was enough undue influence to invalidate the changes. The factors are:

  • The relationship between the elderly, the beneficiaries, and the accused influencer
  • If the accused influencer has the ability and opportunity to exert the influence
  • Whether the change to the estate seems strange or inconsistent with the rest of the estate plan
  • The reason for the change of the documents or the changes to the estate
  • The state of mind of the elderly individual, including any physical or mental disabilities
  • Any other evidence surrounding the elderly individual’s intent when they make the change

Using these factors, the court will determine if the beneficiary challenging the will for undue influence has a proper claim and might issue several different remedies based on the circumstances.

Remedies Available For Undue Influence

After the beneficiary can satisfy the three-part test and the court weighs the factors, the court will determine the proper remedy. The most common remedy is for the court to invalidate the entire change. This could include either revoking any documents signed under undue influence or voiding any conveyance of property. Depending on the severity of the undue influence, the court may only slightly modify the document to reverse the damage done by the undue influence.

Experienced Probate Attorneys Are Waiting For You

If you feel that your loved one has been the victim of undue influence, let us help you navigate the process of bringing an undue influence claim. It can be a complicated process, and we are ready to put together your case and gather all of the necessary information. The team of attorneys at DallasProbateAttorneys.com will guide you through the complex court process. Reach out to DallasProbateAttorneys.com to schedule a consultation by calling (972) 991-7700 or contacting us online.

Will Contests: Requirements Of Formation Not Met

One way to contest a deceased person’s will is to ask the court to invalidate that will. One of the ways to have a will invalidated is by arguing that the will was not formed properly. If the will does not meet the formation requirements under Texas law, it may not be valid. How do you know if a will is valid? To create a valid will, it must meet three specific requirements:

  • The will must be in writing
  • The testator (will creator) must sign the will
  • Two other people must witness the signing

These requirements seem relatively simple, but they may cause problems if not appropriately followed. Below we’ll discuss how these requirements can be met and what could happen if they are not satisfied.

Writing Requirement

In Texas, a will must be in writing. Writing means it must be in a physical, tangible form. For example, a valid will cannot exist in only a PDF document on your laptop; it must be on a physical piece of paper. The writing on the form could be typed or handwritten.

Signature Requirement

Next, the testator must sign a valid will. A testator is a person who is making a will. Suppose the testator cannot sign due to a disability or other impairment. In that case, another individual can sign the testator’s will as long as the signing individual is signing the document in the testator’s presence and under the testator’s discretion. When an individual other than the testator signs the will for the testator, they must also sign in front of two witnesses, as further discussed below.

The contents of the signature are usually not at issue in Texas courts. Usually, as long as the testator makes some mark, even an X to represent their signature, it will be considered valid. The most important aspect of the signature requirement is the testator realizing what they are doing by signing the will and understanding the document’s general effect.

Witness Requirement

Finally, the last requirement to form a valid will under Texas law is that the will be signed by two witnesses. These witnesses should not be beneficiaries of the will, they must be at least fourteen years old, and they must sign the will in the presence of the testator.

To protect the testator, the witnesses must not be direct beneficiaries of the will being signed. Typically, this is seen when a testator signs a will on their own and asks their children or spouse to be a witness. The will might not be considered valid under Texas law when this happens. Two uninterested witnesses such as employees at an attorney’s office would be allowable.

The witnesses must also be at least fourteen years old. This requirement helps ensure the witnesses understand what they are signing and its effect.

Lastly, the witnesses and the testator must sign in the presence of each other. The signing of the documents by all three parties must occur within the same period. For example, the testator cannot sign their will in the morning while at home and then have their neighbor sign the will as a witness later that afternoon. Both witnesses and the testator must see each other signing the will.

Consequences Of Improper Formation

When the testator creates what they believe to be a will without meeting all of the above requirements, the will may be invalid. An invalid will can be challenged in later court proceedings, and if the judge finds the will was not correctly formed, the gifts or transfers of property under the will could fail. In Texas, there is an exception to these will formation requirements. A will might be considered valid if it is a holographic will.

Holographic Wills

A holographic will is a handwritten will. Under Texas law, if the testator writes the entirety of the will in handwriting and signs that will, it may be considered valid. It is essential that no other person writes or types any part of the testator’s holographic will. Even the testator cannot type the will and then print it; the will in its entirety must be in their handwriting.

If the entire will is in the testator’s handwriting, the witness signatures will not be necessary for the will to be considered valid.

Talk To An Experienced Dallas Will Attorney For Help

If you are looking for a way to create a will and ensure it will be valid, or you think you may be a beneficiary of a will that was not formed properly, consult with an experienced attorney. An experienced estate litigation attorney can help guide you through the process of challenging a will. Reach out to DallasProbateAttorneys.com to schedule a consultation by calling (972) 991-7700 or contacting us online.

Will Contests: Multiple Wills – Which One Matters?

Have you been sorting through a loved one’s essential documents after they have passed away? Did you find multiple wills all signed on different days? How do you know which one you should follow? Or have you created multiple wills in your lifetime and want to make sure your loved ones read the correct one? In this article, we’ll discuss how to determine which will is the one that matters.

Reasons To Have Multiple Wills

In general, when a person creates multiple wills throughout their lifetime, they change various things in each will. A person may write a will when they are young and unmarried, create a new will when they get married, make yet another will when they have children, and maybe even another will after their children are grown and perhaps when they are divorced. It is essential to know how to revoke or invalidate old wills because you can only have one will after your death. If you have multiple wills, a court will need to determine which will is valid and distribute your assets according to the directions you left in that will. If you have created multiple wills and it is unclear which of them you want to control your estate, the court may not be able to follow your desired direction. In addition to the court potentially not following the will you would have chosen, you will leave your loved ones with the difficulty and court costs of determining which will you meant to be followed to distribute your estate.

If you want to change your will, you can create what is called a codicil. A codicil can change portions of your will without requiring an entirely new will. But, if you or a loved one has created a new will, you’ll need to make sure that the old will is no longer valid.

Will contest attorney in Dallas, Texas.

Which Will Matters

Under Texas law, the newest will by date will most likely control the distribution of the deceased person’s estate. Because of this, it is essential to date each will as you form it. Typically, courts find that the will created closest to the deceased’s death reflects the deceased’s latest intent of distributing their assets, and therefore the latest will is validated. In addition, most wills that an attorney drafts will include language that revokes all prior wills. This language will assist in determining which will is to control.

An Attorney Can Help You Determine Which Will To Use

If you have questions concerning creating or contesting a will, you should consult with an attorney for guidance and direction. DallasProbateAttorneys.com is here for you. Our experienced estate planning and litigation attorneys can help you determine how to proceed. Reach out to DallasProbateAttorneys.com to schedule a consultation by calling (972) 991-7700 or contacting us online.

Will Contests: Ambiguous Language

If you don’t understand someone, you can ask them for clarification. Not surprisingly, you can’t ask someone for clarification when they are deceased. This is precisely the situation many families and courts encounter when a will is drafted with ambiguous language. Ambiguous language is language in a deceased person’s will that is unclear or difficult to understand. To determine what the deceased person meant, courts follow a procedure called the rule of construction.

How Courts Determine What The Will Means

The Texas Supreme Court has made it clear that the rule of construction will control any ambiguous language found in a will. The rule of construction requires the court to look at the intent of the testator (the legal title for the deceased writer of the will). By doing this, the court will determine what the testator was trying to say or explain and find the language to mean what they interpret the testator to have wanted.

Courts must also look at the entire document to determine what the testator meant. This means the court must read the whole will – not just a single line — to understand what the testator wanted to be done with their possessions. By doing this, courts can make sure they find the testator’s true intent and not isolate a specific line that may give property to an individual to whom the testator would not have intended the property to go.

Consulting With A Will Contest Lawyer

If directions in a will are unclear, the testator’s property or possessions might be conveyed to someone against the testator’s wishes. If you think you may be a beneficiary of a will with ambiguous or unclear language, consult with an attorney who can help you determine how to proceed. Dallas Probate Attorney.com’s experienced will contest attorneys can explain your legal rights and options and help you get the property you believe you are entitled to. Reach out to DallasProbateAttorneys.com for a free consultation by calling (972) 991-7700 or contacting us online.

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