15 Jul
It doesn’t matter how clear the wording in a will is or how experienced an attorney for wills and trusts is; it’s always possible that someone will step forward to challenge the decedent’s intent or the will’s specific wording.
For everyone involved, it can be highly stressful, especially as contesting wills can considerably lengthen the probate process. Knowing it has the potential to halt asset distribution, increase legal fees, and put a considerable strain on loved ones, it’s important to understand what’s involved – whether you’re the person contesting it or someone else involved in the probate process. If you find yourself in this very situation, take note of the following information:
A Will is a Public Record
The reading of the will after a loved one dies can often be an intimate affair. However, it’s important to note that wills aren’t restricted to just heirs or beneficiaries. Once they enter probate, they become part of the public record. This means that anyone can visit the probate court and view them. Sometimes, they are even available to view online.
Wills are made public to ensure fairness during probate, especially when there may be multiple potential claimants to an estate. Public access to wills means that, under state law, creditors or overlooked beneficiaries can assert their rights.
Any Interested Party Can Contest a Will
While not just anyone can contest a will, any interested party can. An interested party is someone who could gain money or property if a will is determined to be invalid. For example, they might be the beneficiary of a prior will, a creditor with a claim against the estate, or an heir under Texas intestate succession laws.
However, during wills and estate planning, many people try to minimize the risk of disputes by introducing a no-contest clause. A common statement is that anyone who contests the validity will lose their inheritance or receive only a small amount, such as $1. As such provisions aren’t always enforceable, always discuss the inclusion of such a clause with your chosen wills and estate planning attorney.
You Must Have Grounds to Contest a Will
You can’t contest a will just because you don’t like its contents. You must be able to prove that something wasn’t right at the time it was created. Most people contesting wills do so for these reasons:
Invalid Documents or Illegal Terms
Sometimes, a will is drafted as a handwritten document that the decedent signs, but it lacks the required signatures of the two witnesses. There might also be terms that violate probate statutes.
Lacking Testamentary Capacity
Theoretically, any legal adult has the option to create an estate plan. However, not everyone can create legally-binding documents.
For a will to be valid, the person making the will must have testamentary capacity. This means that they know the assets they have and who their beneficiaries are. They also understand the impact of the documents they’re signing. A lack of testamentary capacity due to severe mental illness, dementia, age-related cognitive decline, or something else, may mean that the will doesn’t hold up under scrutiny in probate court.
Allegations of Undue Influence
Someone can have testamentary capacity, but that doesn’t guarantee that they’re in a position to draft a legally valid will. A common reason for contesting wills is an outside party having a relationship with the testator and manipulating or influencing them to change their estate planning terms. The influence could result in changes that benefit the individual but deprive other beneficiaries.
Forgery or Fraud:
If sufficient evidence can be found, a will can be contested for forgery or fraud. This means that a testator was tricked into signing a will by being provided with false information, or that the will was swapped for another document. Fraud may also be claimed if the testator was misled about the contents of the will.
Improper Execution
If a will doesn’t follow Texas’s processes and formalities for wills and estate planning, it can be invalidated. For example, someone might contest a will if only one witness’s signature was obtained, rather than the required two.
Timing is Everything with the Burden of Proof
Whether or not someone needs to prove a will is valid or invalid depends on when it’s contested. If it’s contested during the two-week public notice period before the judge officially approves the will, the burden of proof falls on the executor and beneficiaries to prove the will is valid. If a contest is filed after probate, the burden shifts to the contestant to prove the will is invalid.
There’s a Time Limit for Contesting Wills
Everyone needs time to grieve, but if you intend to contest a will, the clock is ticking. Timing is critical, and if you miss the deadline, you lose the right to contest the will permanently.
In most cases, you have two years to contest a will from the date it was admitted to probate. However, the deadline can be extended if you’re able to prove fraud or forgery or if the contestant was an incapacitated minor during that initial two-year window.
A Self-Proving Affidavit Streamlines Probate
If you’re worried about your will being contested after you pass, discuss a self-proving affidavit with your attorney for wills and trusts during the planning process. A self-proving affidavit is a statement signed by the testator and witnesses at the time the will is executed. It confirms that a will was properly signed and witnessed.
When a self-proving affidavit is supplied with a will, the court doesn’t need to track down witnesses to sign sworn statements if the validity of a will is called into question for that reason. If a will isn’t self-proved, the court does need to do that.
How Do You Contest a Will?
If you believe you have grounds to contest a will, there is a specific process to follow:
1. File a lawsuit in the probate court that’s handling the estate.
2. Gather evidence to prove your claims, such as fraud or forgery, a lack of testamentary capacity, or improper execution.
3. Enter the discovery phase, where information is shared across both sides. Many will contests are settled through mediation or negotiation before reaching a trial.
Navigating a Contested Will? Contact Livens & Reed Attorneys At Law
Whether you wish to contest a will or need help navigating the process when someone else does, Livens & Reed Attorneys At Law is here to help. As experienced wills and estate planning attorneys, we aggressively represent our clients on both sides of a will dispute and strive to resolve contested issues outside of trial.
Contact us to start your legal service today. We provide comprehensive estate planning services throughout the Dallas-Fort Worth Metroplex and across North Texas, with offices in Bedford, Fort Worth, and Addison, Dallas.
