Contesting a Will
When most people decide to create a Last Will and Testament, they intend that the document will lay out their final wishes and desires for the disposition of the estate at the time of their death. However, in some cases, the creation of that Last Will can sometimes create a source of conflict for the family and/or beneficiaries of the Decedent, resulting in a will contest.
In general, two different types of contests generally arise out of a Will: objections to the person applying to become executor or administrator of the estate and challenges of the validity of a will's provisions.
Contesting Executor, Administrator of a Will
In the first instance, family members or beneficiaries under the Will may object to the person applying to the Probate Court to be appointed as the executor or administrator of the Estate. They may believe the person to be unqualified to serve, or they may have knowledge that the proposed executor has an adverse conflict or a prior felony conviction which would disqualify him from serving as the executor.
In this type of contest, the parties are not challenging the validity of the provisions of the Will. They are simply challenging the suitability of the person applying to be the executor or administrator.
Contesting Will Provisions
In the second type of contest, parties to the contest challenge the validity of the provisions of the Will offered to the Court as the Decedent’s Last Will and Testament. These challenges typically arise in one of the following manners:
- Revocation of the Will. In some cases, someone may contest a Will on the basis that the Decedent revoked the Will prior to his death. They may offer a more recent Will as evidence of the fact that the earlier Will was revoked.
- Lack of Capacity. In other cases, parties to the Will might file their contest based on the allegation that the Decedent lacked the proper capacity to create a Will at the time that the Will was executed. Because proper capacity is a necessary requirement to recognizing a Will as valid, a contest that successfully shows that the Decedent did not have proper capacity would automatically mean that the Will could not be valid.
- Undue Influence. Finally, some cases require an allegation that the Decedent executed the Will under an undue influence, which means that he did not execute the Will of his own free will. One of the requirements for creating a valid Will is that the Decedent intended to create the Will and that the directions included in the Will are his. If the Decedent is found to have been unduly influenced into executing a Will that did not express his intentions, then the Will cannot be valid.
Contesting a Will in Texas, Attorneys
The issues involved in a Will Contest can often be very complex, and they generally require the expertise of someone who focuses in these areas exclusively. While many attorneys will attempt to tackle these cases, the wary client is wise to consult the advice of attorneys who handles these cases frequently.
The attorneys at Ford+Bergner LLP have worked on many Will Contests in Texas, and we would be glad to assist you should you have a need in this area. With offices in Houston, Dallas and Austin, our will contest attorneys handle cases throughout the state. Contact us.