You must file a petition with the probate court to contest a will. A hearing will then take place, where a judge will decide, based on evidence and the interviewing of witnesses, if the will should stand. Contesting a will can be a complex and time-intensive process; therefore, it is of utmost importance to consult with a lawyer. This will prevent any costly mistakes from being made on your part and give you your best chance for success.
What Is a Will?
A will is a document that indicates how your assets will be transferred after your death. It also lays out any final wishes you may have, particularly regarding how you would like any minor children to be cared for after you have passed on.
For a will to be valid in the state of Texas, it must fulfill specific requirements. These standards include:
- The document must be in writing, either handwritten or typed and printed.
- If you are not married or in the armed forces, you must be 18 or older to make a will.
- You must be of sound mind and memory.
- Your will must be made freely and voluntarily.
- You must sign the will in the presence of at least two credible witnesses, who must also sign it.
What Are the Grounds to Contest a Will?
There are four common grounds on which wills are usually contested. These are: improper execution, lack of testamentary capacity, undue influence, and fraudulent inducement.
Proper execution of a will requires that the will be written entirely in the handwriting of the testator (the person making the will). If it is not completely in their handwriting, then it must be signed by the testator. A lack of testamentary capacity means that the testator was not in sound mind when they wrote or signed their will. Undue influence means that someone else subverted or overpowered the testator’s wishes when they made their will, and they would not have signed it if not for that undue influence. Fraudulent inducement occurs in cases where someone, for example, tricks a testator into signing a new will by telling them the document is something other than a will.
What Is the Timeline for Contesting a Will?
Generally, the best time to challenge a will is before probate. Under Texas law, if a will is challenged in this time period, the burden of proof is on the executor and beneficiaries to prove that the will was indeed valid. When a probate court receives a will, there is a two-week waiting period where you can contest the will before probate begins. If you miss this window, the burden of proof switches to you.
Once the probate process begins, you have two years to contest a will outside of a few exceptions. If there is reasonable suspicion the will is a fake or forgery, you have an additional two years to prove that it is illegitimate. If a second will is discovered, you have four years to submit it for probate. If there are heirs that were unaware during the probate process that they were entitled to a share of the estate or if they were incapacitated during the initial two-year window and therefore unable to contest the will, they have up to four years to make an inheritance claim.
If you are contesting a will, get answers and legal help from an experienced Texas attorney. Call us now at 281-771-0560.