Common Reasons To Challenge a Will in Texas

Challenging a will in Texas can be a complex and emotionally intense endeavor. You may consider contesting it if you believe a will does not accurately represent the deceased’s true intentions. To help you navigate this process, we’ve compiled an overview of key considerations for challenging a will in Texas. To contest a will successfully, you must have valid legal grounds.

Typically known as the “Testator”, the person who is executing the will has to be an adult who is of sound mind with sufficient testamentary capacity.  It’s a common misconception that a person lacks testamentary capacity because they have some type of deficiency (they have dementia, are illiterate, lack education, or lack capacity to enter into a contract). The reality, though, is that testamentary capacity is a much lower standard that mostly consists of the ability to identify your assets and next of kin and have a relatively simple understanding of how you want your estate to flow to your family.  Further, testamentary capacity is generally reviewed based on the testator’s capacity on the execution of the will.

So, to successfully challenge a will Texas for lack of capacity, an opponent would carry the burden of establishing that on the day the will was drafted, the testator could not:

• understand that they were making a will;
• understand the impact of making a will;
• identify the nature and extent of their property;
• identify their beneficiaries; or
• hold a thought long enough to complete the drafting of a will.

This list is not exhaustive but includes the most common reasons wills are contested for lack of capacity.

Undue influence typically occurs when someone exerts excessive pressure on the testator, overpowering their free will and causing them to act against their own interests. This is not limited to the immediate image that pops to mind of a character standing over the testator telling them “sign or else”. Influence has been found in much more nuanced circumstances including subtle influence exerted over a long period of time (think deceit and fraud). An example seen in Texas courts is that of a child making a false promise to a dying parent to convince the parent to modify a will with more favorable terms for the lying child.

Factors considered when determining whether a party exerted undue influence include:

• the nature of the relationship between the testator, the opponent, and the alleged influencer;
• the alleged opportunities for the influencer to access and persuade the testator;
• the circumstances surrounding the drafting and execution of the will;
• the motive, character, and conduct of the alleged influencer; and 
• whether there was actually influence asserted or fraudulent activity.

Once these factors are considered, a court then must find that the testator’s mind was actually overpowered by the influence and that the will in question was a result of the overpowering.  This burden can often be a tough one because testimony that the testator was notoriously stubborn and could never be pushed around will put some sizeable barriers in the way of this claim. 

In addition to the fraud explained above, fraud can occur if the testator is misled into signing a will that not what they were expecting to execute.  There is also the more self-explanatory issue of a will or the signature thereon simply being forged. Both of these would be grounds to challenge a will.

Thankfully, the Texas Estates Code limits who can challenge a will to an interested person with a pecuniary interest in the estate. Interested persons in Texas are, generally, heirs, devisees, spouses, creditors, or someone with a property right in or claim against the estate. There should not be a situation where bots are scouring probate court filings and submitting frivolous will challenges.

Attorneys fees and costs of challenging/defending a will are generally assessed against the estate which tends to cannibalize the estate and harm the beneficiaries under the estate across the board. Further, an unsuccessful challenge to the estate could lead to an award of costs for the estate against the person challenging the will. 

No-contest clauses, sometimes referred to as in terrorem or forfeiture clauses, are mechanisms designed to prevent an heir from challenging a will. Specifically, a properly drafted in terrorem clause will cause an heir to forfeit all gifts originally offered to them under the will in the event of a will contest.

Challenging a will in Texas requires a clear understanding of the legal grounds and procedural requirements. It involves meticulous preparation, including gathering substantial evidence and possibly engaging in legal discovery. Even with proper preparation and a legitimate argument, the task of challenging a will is daunting and likely expensive. Cost and likelihood of success cannot be over-emphasized and should be heavily considered before a party dives into probate litigation.

By understanding the grounds and steps involved in contesting a will, individuals can better protect their interests and ensure that the testator’s true intentions are honored.

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