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Three lead attorneys at Livens & Reed, PLLC
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When And Why A Will Can Be Challenged: Part II

On Behalf of | Aug 6, 2020 | Probate Litigation |

In our last post, we began a discussion about will contests and the most common reasons for them. In today’s post, we’ll discuss the two most common and compelling reasons for challenging the validity of a will: Allegations of lack of testamentary capacity and allegations of undue influence/fraud/forgery.

Challenging Testamentary Capacity

In Texas, in order for a will to be valid, the testator (creator of the will) generally needs to be at least 18 years old and “of sound mind.” Unless there is reasons to suspect otherwise, most adults are presumed to be of sound mind and, therefore, to have testamentary capacity. (Minors generally don’t have the right to create a will in Texas unless they are married or serving in the military).

When questions arise about testamentary capacity, it is often because the testator allegedly:

  • Suffered from dementia or senility at the time of writing
  • Was under the influence of a substance (such as an intoxicant) at the time of writing
  • Was insane at the time of writing
  • Never had the mental capacity to create a will (such as a person who has been cognitively disabled his entire life)

As the reasons above suggest, testamentary capacity is more likely to be an issue when someone makes a will later in life rather than in young adulthood.

Challenging Validity or Alleging Undue Influence

A will is obviously invalid if it can be shown to be a forgery. But it may also be considered invalid if the testator was being defrauded at the time of writing.

Perhaps the most common challenge in this category is a challenge based on allegations of undue influence. Let’s say that a testator’s original will left the majority of his assets to his adult sons and daughters. Near the end of his life, however, he changed his will to leave most of his assets to a healthcare worker who was at the house nearly all day, every day.

In such a case, without any other explanatory factors, it would be reasonable to allege that the healthcare worker manipulated and exerted undue influence on the testator – particularly if the testator might have been of questionable mental capacity at the time. When challenged, the testator’s children may assert that the penultimate (second-to-last) will was actually the true and legitimate one.

Discuss Your Concerns with an Estate Litigation Attorney

If you are an heir or beneficiary (current or former) and believe that there are problems which could invalidate a will, please contact our firm to discuss your rights and legal options.


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