Blog

Texas law does allow for wills to be contested, but to do so you must file a formal lawsuit. The Texas Probate Code, Section 93, governs this procedure and allows two years in which a will can be contested. Contesting a will is a difficult and time-consuming process, and it’s vital to have a probate lawyer in Houston with experience in the local probate courts to take care of your case.

What Is the Process for Contesting a Will in Houston?

1. Determine If You Have Legal Standing

A challenge to a will can only be brought by someone who has the legal eligibility to contest it. Typically, the only entities who are legally entitled to contest a will are the beneficiaries, the heirs who would inherit it if there was no will, and any party with a legal interest in the property of the testator.

2. Talk With a Probate Lawyer in Houston

Look for an attorney who has significant experience in Texas probate law and who works in the Houston court system. You’ll also want to verify that the attorney has a good reputation and a track record of success and client satisfaction. It’s important that you feel comfortable with your attorney: comfortable enough to communicate honestly and thoroughly with them.

When you come for your initial discussion with your attorney, bring whatever relevant documents you have so that your attorney can give you an effective evaluation of the case. Your attorney will then be able to tell you how the law will apply in your case, what legal precedents have been set in the past and how they may affect your case and what challenges you should expect.

3. Think Through Your Grounds for Contesting the Will

Lack of Testamentary Capacity

Here, you are basically arguing that the person who made the will lacked the mental capacity to completely understand the legal ramifications of what they were doing or that they seriously misunderstood the overall value of their assets. You might also argue that they did not realize they were actually signing a will or that they were otherwise doing something contrary to their own best interests without realizing it.

Undue Influence

With undue influence, you are arguing that a third party was exerting more influence over the testator of the will than they should have been allowed to have. This is not uncommon in the case of elderly people who have become weaker mentally and thus more susceptible to the influence of younger relatives. This argument does require showing some credible evidence that someone was working to pressure or manipulate the testator into writing terms into their will that would not otherwise have been likely to set.

Lack of Due Execution

For a will to be valid in the state of Texas, it must follow Texas law. It must be in writing; it must be signed by either the testator in person or by someone on their behalf, but still in the testator’s presence and under the testator’s direction; and it must be attested to by two or more credible witnesses of no less than 14 years of age. The two witnesses must sign their names in their own handwriting in the testator’s presence.

There are a few exceptions to these rules, but in general, if a will follows them, it becomes very difficult to contest it. Additionally, the will must follow all laws about how the specific terms within it are handled and how the will is executed. If the will does not properly and lawfully address all these issues, it may be possible to challenge it. Lack of due execution is actually one of the main reasons that wills are invalidated in Texas.

Fraud and Forgery

Fraud and forgery are rarer reasons for contesting a will, but in some cases, a handwriting expert may be able to show that the signature is a forgery. In other cases, you can bring a contest based on fraud, which is not contesting that the testator signed it but rather asserting that they were deceived or tricked into signing it.

4. Filing a Lawsuit

If you and your lawyer believe that you have valid grounds for contesting a will, you will then initiate a lawsuit, which your lawyer will draft and then file with the appropriate court. Normally you will be filing in the probate court of the county of which the testator was officially a resident at the time of their death.

5. Discovery

Once you have initiated the lawsuit, it enters a period known as “discovery.” This is a time for gathering evidence and all parties involved have the opportunity to do so. All parties may request relevant documents from the other parties, conduct interviews with witnesses, and call in expert witnesses as needed. The sort of documents you may want to get or maybe be required to give will normally include financial records and medical records.

Your attorney may seek depositions or interrogatories from various witnesses. These are types of formal sworn testimony. In a deposition, a witness is questioned under oath by a lawyer for the opposing side with their responses recorded. An interrogatory is written communication where one party sends the other specific questions and the written responses are considered “under oath.” you may also be asked to give a deposition or an interrogatory, and if that happens your lawyer will help you to understand what questions will be asked and the best way to answer them.

6. Settlement or Trial

If the two sides can come to an agreement before the trial, with the help of their lawyers, this is often the least expensive and simplest way to go about resolving the dispute. It also eliminates the uncertainty that always comes with a trial.

If a settlement can’t be reached, the lawsuit will go to trial. Both sides will present their evidence, witnesses will be interviewed and cross-examined, and the final determination will be made either by a jury or by a judge. At the start, the two parties have to decide whether a jury trial or a bench trial is what they want. In the first, a panel of individuals from the community hear the case and make the final judgment. In a bench trial, the judge does this themselves. Your attorney will be able to tell you about the best choice for your situation.

7. Options After the Verdict

If you are displeased with the court’s decision, you will be able to bring an appeal. To bring an appeal, you have to be able to show that you believe there were legal errors of some kind in the original trial or that some kind of legal grounds were not properly taken into consideration. Your lawyer will be able to tell you if you have grounds for appeal.

The appellate court may reject the appeal, but if they accept it and review it they will then agree with the lower court decision, reverse the decision of the lower court, or order an entirely new trial.

Challenging a will is not a small matter, and you need an experienced attorney on your side. Contact us at Ford + Bergner LLP in Houston now at 713-260-3926 to set up a consultation and case evaluation.