A will can be contested by an attorney in a Texas probate proceeding on the following grounds:
- Lack of proper formalities/undue execution
- Undue Influence
- Lack of capacity
Lack of Proper Formalities/Undue Execution
A will can be contested in Texas if the will was not properly executed. Proper execution of a will in Texas requires that (1) the will must be signed by the testator or by another person at his direction and in his presence, (2) the will must be attested by two or more credible witnesses over fourteen years of age, and (3) the witnesses must sign in the presence of the testator. A will can be contested in Texas on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements. Tex. Estates Code sec. 251.051.
However, a will written wholly in the testator’s handwriting is not required to be attested by subscribing witnesses. If the will is handwritten entirely by the testator, the testator need only affix a signature or initials to the document to execute the instrument. See Lemus v. Aguilar, 491 S.W.3d 51 (2016 Tex. App.).
A will can also be contested in Texas on the grounds of undue influence. Undue influence occurs when the testator is unduly compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. To establish undue influence in Texas, the will contestant must prove the existence and exertion of an influence that subverted or overpowered the testator’s mind at the time the testator executed a will that the testator otherwise would not have executed but for such influence.
A will contestant can raise a presumption of undue influence by introducing evidence of a fiduciary relationship between the testator and the will proponent. Common hallmarks of undue influence include a testamentary gift that is unnatural, a testator with a weakened mental state, and a beneficiary with a controlling hold over the testator. Perhaps relatives that were once close to the testator have been excluded from the testator’s will after the beneficiary became a controlling force in the testator’s life.
Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (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. See Rothermel v. Duncan, 369 S.W.2d 917 (1963 Tex.)
The exertion of influence that was or became undue is usually a subtle thing and by its very nature usually involves an extended course of dealings and circumstances. Thus, it is settled that the elements establishing undue influence may be proved by what is known as circumstantial, as well as by direct, evidence.
Factors of Undue Influence
Factors to be considered when determining whether undue influence exists in a particular case are:
- the nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence;
- the opportunities existing for the exertion of the type of influence or deception possessed or employed;
- the circumstances surrounding the drafting and execution of the testament;
- the existence of a fraudulent motive;
- whether there has been an habitual subjection of the testator to the control of another;
- the state of the testator’s mind at the time of the execution of the testament;
- 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;
- words and acts of the testator;
- weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise;
- whether the testament executed is unnatural in its terms of disposition of property.
See Estate of Graham, 69 S.W.3d 598 (2001 Tex. App). To read about a cause where summary judgment was granted in an undue influence case, click here.
Another way to contest a will in Texas is to show that the will has been revoked. A Texas will can be revoked by the testator executing a new will. A testator can also revoke a will by a physical act. The physical act must be upon the entire will, and the testator must have the intent to revoke the will and the mental capacity to revoke it at the time of the physical act.
A party who seeks revocation by a subsequent will or declaration in writing must prove the subsequent instrument was executed with the same formalities that are required to probate a will. Moreover, it is not necessary that a purported revoking instrument be offered for probate. Not only must a party seeking revocation by a subsequent instrument prove execution with the requisite formalities, but he must also “prove that the subsequent instrument was executed at a time when the [testator] was of sound mind and disposing memory.” Harkins v. Crews, 907 S.W.2d 51 (1995 Tex. App.)
Lack of Testamentary Capacity
Under Texas law, a testator is required to have mental competency to make a will. This means the testator must, at the time of executing the will, (1) understand the effect of making the will and the general nature and extent of the testator’s property; (2) know the testator’s next of kin and the natural objects of her bounty; and (3) have sufficient memory to assimilate the elements of executing a will, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them.
A will can be declared void if lack of capacity can be proven. Typically, incapacity is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed. We have written about how to prove lack of testamentary capacity in Texas here.
Sometimes a will is created as a result of fraud. The testator is the victim of a fraud perpetrated upon him that led the testator to create a will that does not reflect the testator’s true wishes. Perhaps someone convinced the testator of something knowing it to be untrue, causing testator to change testator’s will. For example, an unscrupulous child could tell a parent lies about a sibling to cause that sibling to be disinherited. Examples of such fraud could be that the sibling has been convicted of a crime, has engaged in illegal or immoral acts, or has said derogatory things about the testator. If the will has been prepared based on the fraud, the will can be set aside in a successful will contest.
A will can be invalidated if it was executed by mistake.However, absent some showing of fraud or undue influence, the testator’s mistake of law or fact will not invalidate her will, even if she would have made a different will had she known the true facts.
How long do you have to contest a will in Texas?
When a Texas probate court receives a will, there is a two-week waiting period before an application to have the will admitted to probate. During the waiting period, a notice is posted at the courthouse. If you can enter a challenge to the will during this period, the probate process can be stopped. If the will has already been admitted to probate, the time for contesting a will in Texas is up to two years after the will is admitted to probate.