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If the initial attempts to resolve the issue don’t work, you will need to file a formal contest if you are questioning the will or respond to one filed by whomever is contesting it. In Texas, only “interested parties” can file a contest, and “interested parties” are those with a financial stake in the estate, such as heirs, beneficiaries, or creditors. 

Whether you are contesting a will or arguing that it should stand as written, you will need evidence and witnesses to back you up. The burden of proof is on the person who is challenging the will. In other words, they need to convince the court that for some reason this document is invalid. 

Medical reports, witness statements, financial documents, testimony from medical experts like doctors or psychologists, and more can all be used as evidence here. For example, if one side is arguing there was undo influence by one family member, testimony from a caregiver who saw the interactions between that family member and the deceased can be used to help in showing this.

It’s important to bear in mind that just because an action has been started in probate court does not mean that it can only be resolved through litigation. It’s common for these disputes to be settled before the trial finishes, and this is often best for everyone involved. Sometimes the court will even order mediation, but you can always enter mediation voluntarily. 

Mediation is a chance for both sides to come to a resolution on their own and can help you avoid a prolonged conflict that costs everyone money and rips a family apart emotionally. Mediation happens when a neutral third party meets with the two sides to help them find common ground and get past their dispute to a compromise everyone can live with. For example, if one of the beneficiaries believes the deceased intended to leave more to them than the will does and is thus contesting the will’s validity, a mediator can help the group come to an agreement to re-distribute some assets or provide other compensation. This might be a smart move if that beneficiary has a strong enough case that the issue could be drawn out in the court for some time. 

Additionally, mediation allows the two sides to reach more creative agreements than the courts would manage. For example, if the will calls for a family home to be sold and the assets distributed equally between two siblings, but one sibling very much wants to keep the home, then in mediation the two sides could reach an agreement where one sibling agrees to give cash in exchange for keeping the home.

Once an agreement is reached, it will be submitted to the court for approval, and this will make it legally binding. It’s important to have a lawyer working with you throughout this process. A lawyer will review all agreements to make sure they are in your best interests and advise you on how to negotiate. A lawyer will also make sure that all your agreements will be acceptable to the court. If you’re able to come to agreement and mediation, it allows you and your family to keep more control over the outcome of probate.

If the court issues a ruling, and one party believes it’s unjust, they can appeal. These appeals have to be filed quickly, and they must be based on a legal error: you can’t just rehash the entire case. 

If there is a good reason to appeal, your lawyer can certainly help you to do this, but it is important to be aware that an appeal can extend a dispute by months and sometimes even years. It should be considered a last resort, but sometimes it is necessary, and your lawyer can help you decide when it’s worthwhile.

For help with your probate dispute, family planning, or anything else related to trusts, estate planning, or guardianship, contact Ford + Bergner LLP in Dallas, Austin, or Houston, TX today for a consultation.