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Invalid Wills

The Texas Estates Code defines a will as a testamentary instrument that either (1) appoints an executor or guardian, (2) directs how property may not be disposed of, or (3) revokes another will. Note that the document does not have to meet all three requirements to be a valid will. State law provides any missing information. For example, state law will say who is entitled to serve as the personal representative and who is entitled to inherit the property if the will is missing these terms.

A will can be modified by a subsequently written document. This subsequent document is called a “codicil.” There is a distinction between a codicil and a new will. The document is a codicil if its language suggests that it is modifying a prior document. The document is a new will if it does not modify the prior document, but includes terms that are contrary or in addition to the terms in the prior document. To be valid, the codicil has to modify a prior will that was valid. If there is no prior will that was valid, the codicil is also not valid.

A will that restricts the beneficiaries from selling property is void. See Williams v. Williams, 73 S.W.3d 376 (Tex. App.‒Houston [1st Dist.] 2002).

Improper Execution:

Though uncommon, it is possible to have grounds to contest a will if the will was not executed properly. Here are a few things one can look for when determining if a will was executed according to the law:

  1. Was the will signed by two witnesses in the presence of the decedent?
  2. Was the will notarized?
  3. Were the signatures of the decedent or witnesses forged?
  4. Were additional pages added to the will after it was finalized?


Is the will invalid because it had previously been revoked? A will can be revoked either by a physical act (for example: being shredded by the decedent) or by the execution of a subsequent will.

Undue Influence

Undue Influence: A will is not valid if, at the time of execution, the decedent was under a significant amount of influence from another person. The following questions help explain when a will was executed under undue influence:

  • Did an influence exist and was it exerted?
  • Did the influencer undermine or overpower the mind of the decedent at the time he signed the documents?
  • Would the decedent not have signed the document had the influence not existed?

About Undue Influence in Will Contests

To be valid, a will must express the maker’s intent. Often, the maker’s intent is overridden by those who have influence over the maker given the maker’s advanced age, dependence on the person, or family or social circumstances. This undue influence can provide grounds to contest a will in Texas.

What is Undue Influence?

Influence becomes “undue” when it causes an individual to do something that they would not have done without the influence. When there is evidence of undue influence, interested persons can challenge the validity of the resulting will in court.

To prove undue influence, all of the following must be true:

  1. the existence and exertion of an influence,
  2. the effective operation of that influence so as to subvert or overpower the decedent’s mind at the time of the execution of the testament, and
  3. the execution of a will which the maker would not have executed but for such influence.

Proving Undue Influence

The burden to prove the existence of undue influence falls on the persons contesting the will. It is often a difficult burden to prove.

There are a number of factors Texas courts consider when determining whether undue influence has occurred during the execution of a will, including the following:

  1. the circumstances regarding the execution of the will,
  2. the relationship between the decedent and beneficiaries,
  3. the motive, character, and conduct of those who benefit under the will,
  4. participation, words, and acts of all parties attending the execution of the will,
  5. the physical and mental condition of the decedent at the time of the execution,
  6. the age, weakness, infirmity, and dependency on or subjection to the control of the beneficiary, and
  7. the improvidence of the transaction by reason of unjust, unreasonable, or unnatural disposition.

Showing only that a person had the opportunity to exercise influence over the decedent; that the decedent was susceptible to influence; or the existence of an unnatural disposition is not sufficient to prove undue influence.

This is illustrated in the case of Carpenter v. Tinney, 420 S.W.2d 241 (1967). Here, a claim of undue influence was brought against the probate of a Will. The claim was based on the bare assertion that because one of the five heirs lived with the testator, they must have influenced the testator’s decision to leave this heir a more substantial bequest. There was no evidence of undue influence. On the contrary, there was evidence that this heir accused of exerting undue influence on the testator was not even aware that the testator had formed a Will.

The Overpower Freewill Standard

To be successful the persons bringing the will contest, the party must show that the influence overpowered the free will of the testator and, the will produced expresses the wishes of the person exerting the influence rather than the decedent’s wishes.

Similar to undue influence, another possibility is that the decedent lacked the requisite mental capacity to execute a will. Let’s consider that topic next.

In Cobb v. Justice, 954 S.W.2d 162 (Tex. App.‒Waco 1997), the court held that a former beneficiary listed on a financial account beneficiary designation form can bring suit to contest the change of the beneficiary designation based on undue influence.

Lack of Testamentary Capacity

A person’s mental ability must be sufficient at the time of execution for a will to be valid. One of the most common challenges to wills is that the decedent lacked the mental capacity required to carry out his or her wishes.

Deemed Lack of Mental Capacity

The person making a will must have the mental capacity to do so at the time the will is executed. According to the Texas Estates Code, the following individuals are considered incapacitated:

  • A minor.
  • An adult, who because of a physical or mental condition, is unable to:
  1. Provide food, clothing, or shelter for himself,
  2. Care for his physical health, or
  3. Manage his own financial affairs.
  • Anyone who has to have a guardian appointed to receive government funds.

A “minor” means a person younger than 18 years old who has not been married and has not been declared emancipated by the courts.

What is the Lack of Mental Capacity?

Those who are not deemed to lack mental capacity can still be found to not have the requisite mental capacity. Generally, a person does not have the capacity to make a will if, at the time they executed the will, they were not of sound mind–that is, they lacked testamentary capacity.

A testator lacks testamentary capacity if any of the following are true when the will was executed:

  1. They were not able to understand the business in which they are engaged;
  2. They do not understand the effect of their actions in making the will;
  3. They were not capable of understanding the general nature and extent of their property;
  4. They do not recognize their next of kin and the natural objects of their bounty; and
  5. They do not have sufficient memory to collect in their mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment.

If the testator’s lack of testamentary capacity cannot be established by these elements, their capacity may be negated by showing that the terms of the will were produced by an “insane delusion.”

An insane delusion occurs when the testator believes in supposed facts that do not exist and that no rational person would believe. For example, Texas courts have found insane delusion when a testator believed that astronomers were on the verge of discovering the gates of heaven.

Self-Proving Affidavits

A self-proving affidavit can provide some evidence of testamentary capacity. A self-proving affidavit is a document attached or affixed to a will that contains sworn statements by witnesses as to the validity of the will. These sworn statements are attached to and made a part of the will itself.

The self-proving affidavits allow the will to be admitted to probate without further evidence of capacity. The self-proving affidavit is not conclusive. Even if there is a self-proving affidavit, a party may still bring a will contest based on lack of testamentary capacity. Other evidence of incapacity can be used to rebut the affidavit.

Evidence of Mental Capacity

The date the will is executed is the relevant time period for determining the testator’s mental capacity. In the absence of evidence from that specific day, evidence of lack of capacity from a previous date can be introduced to show that the testator would have lacked capacity on the date the will was executed.

The following factors the courts are to consider evidence from an earlier date:

  1. Was the evidence of the kind that would indicate a lack of testamentary capacity?
  2. If so, was that evidence probative of the decedent’s capacity, or lack thereof, when the will was executed?

Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983).

In Croucher, there was evidence of the testator’s incapacity one month before his will was executed. The testator had been admitted to the hospital, and there was evidence that he had reduced blood flow to his brain as a result of occluded arteries. The testator suffered a stroke, which affected his speech and memory. This evidence was enough for the court to conclude that the testator lacked mental capacity on the date the will was executed.

Traditional Will Contest

The term “will contest” refers to a lawsuit where someone questions the validity of the will. The question is whether the document that is being offered as a will is valid and expresses the decedent’s intent.

Who May Contest a Will?

In Texas, any “person interested” in an estate can contest a matter in probate court.

The term “interested” is defined in Texas Estates Code § 22.108:

  1. An heir, devisee, spouse, creditor, or any other having a property right in or claim against the estate or
  2. Anyone interested in the welfare of an incapacitated person, including a minor.

Thus, anyone whose rights in the estate will be affected by the probate or defeat of the will is an interested person. This is strictly a monetary interest in the estate. Sentimental or other relations do not result in a person being interested in the estate under Texas law.

In Estate of Matthews, 510 S.W.3d 106 (Tex. App.‒San Antonio 2016), the court explained that a party who does not have an interest in the estate can be removed from a will contest proceeding before trial upon the filing of a motion in limine.

Admissible Evidence

In May v. Crofts, 868 S.W.2d 397 (Tex. App.‒Texarkana 1993), the court confirmed that the attorney who prepared the will can represent the proponent of the will in a will contest. This is true even if the attorney is to be called as a witness in the case.

No-Contest or Forfeiture Clauses

It is common for wills to include a no-contest clause. This clause is also referred to as a forfeiture clause or an in terrorem clause.

These terms refer to language in a will that says a person’s rights in the estate are forfeited if they bring any court action in relation to the will. This can include a lawsuit to contest or modify a will. These clauses are included to discourage beneficiaries and heirs from fighting over property.

Texas Estates Code §254.005 says that forfeiture clauses are enforceable unless the contestant can show that just cause existed for bringing the action and the action was brought in good faith.

Texas courts rarely enforce no-contest clauses. In Badouh v. Hale, 22 S.W.3d 392 (Tex. 2000), the court concluded that a party applying for turnover relief did not violate the forfeiture clause in the will. He did not oppose the will or attempt to invalidate any of its provisions. He merely tried to collect payment as a creditor of the estate. In Di Portanova v. Monroe, 402 S.W.3d 711 (Tex. App.‒Houston [1st Dist.] 2012), the court found that the forfeiture clause was not triggered when the beneficiary filed suit to consolidate the trusts.

There are twelve different types of lawsuits that do not trigger forfeitures:

  1. to recover an interest in devised property;
  2. to compel an executor to perform duties;
  3. to ascertain a beneficiary’s interest under a will;
  4. to compel the probate of a will;
  5. to recover damages for conversion of estate assets;
  6. to construe a will’s provisions;
  7. to request an estate accounting or distribution;
  8. to contest a deed conveying a beneficiary’s interest;
  9. to determine the effect of a settlement;
  10. to challenge an executor appointment;
  11. to seek redress from executors who breach fiduciary duties; and
  12. presenting testimony in a will contest brought by other beneficiaries.

See, e.g., Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) – declaratory judgment; Estate of Schiwetz, 102 S.W.3d 355 (Tex. App.‒Corpus Christi 2003).

What actually counts as a will contest varies based on the language included in the no-contest clause itself. This language should be reviewed and considered before the will contest lawsuit is filed.

Returning Property Prior to Filing Suit

A person cannot receive property under the terms of a will and at the same time challenge another part of the will. The beneficiary who has received property under the will is estopped from contesting the will. In Estate of McDaniel, 935 S.W.2d 827 (Tex. App.‒Texarkana 1996), the court concluded that an offer to return the property and its proceeds prior to initiating a will contest can be evidence that the contestant did not accept the benefits under the will. Thus, the contestant should offer to return any property received pursuant to the will prior to initiating a will contest lawsuit.

When to File a Will Contest Lawsuit

A will has no legal effect until it is filed with the court and admitted to probate. Once the will has been filed with the court, one or more parties may file an application asking the court to admit the will to probate. The will contest lawsuit cannot be filed until the will is filed with the court. The will contest lawsuit can be filed before or after the will has been admitted to probate.

Before a will can be admitted to probate, the proponent of the will has to file the will with the court and file an application to have the will admitted to probate. The proponent of the will has the burden of proving that the will is valid. This burden shifts to the contestant once the will is admitted to probate. See, e.g., Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983).

If the will contest is filed after a will has been admitted to probate, Texas Estates Code § 256.204 provides that the contest must be filed within two years after the date the will was admitted to probate. This two year period is absolute. In Estate of Blevins, 202 S.W.3d 326 (Tex. App.‒Tyler [12th Dist.] 2006), the court confirmed that this two year period to file a will contest lawsuit is not cut short by personally serving the interested party at the start of the probate proceeding.

There are some circumstances where the contest can be filed after the two-year statute of limitations has expired. For example, minors have two years from the removal of their disabilities within which to commence a will contest lawsuit. In Neill v. Yett, 746 S.W.2d 32 (Tex. App.‒Austin 1988), the court confirmed that an interested party can also file suit to cancel a will for forgery or other fraud within two years after the discovery of the forgery or fraud.

Where to File a Will Contest Lawsuit

The will contest lawsuit must be filed in the court where the application to probate the will was filed. In most cases, this will be the court in the county where the decedent resided at the time of death.

Will contests lawsuits are handled by the statutory probate courts in the larger metropolitan areas. If the county does not have a statutory probate court, the county courts will typically handle contest lawsuits.

Notice Requirements

There is no requirement to notify will beneficiaries, See Texas Estates Code § 51.001.

About the Will Contest

The will contest is started by filing a written opposition in response to the application for probate. In Estate of Hudson, No. 05-11-00008-CV (Tex. App.‒Dallas 2011), the court held that filing a general denial is sufficient to contest a will.

The opposition is filed into the probate proceeding. In Wojcik v. Westolick, 94 S.W.3d 335 (Tex. App.‒Houston [14th Dist.] 2003), the court confirmed that there is no need for the contestant to give notice to the will beneficiaries or any other parties. However, contestants should not rely on this. To avoid disputes, the contestant should name all possible defendants and should serve them with citation.

The courts have confirmed that the probate court has to have an evidentiary hearing before it can admit the application to probate if an opposition is filed. For example, in Estate of Arizola, 401 S.W.3d 664 (Tex. App.‒San Antonio 2013), the appeals court held that the probate court erred by not allowing an evidentiary hearing before admitting the will to probate.

Texas Estates Code § 55.002 confirms that the contestant is entitled to a jury trial as he would be in other civil actions. The contestant has to request a jury trial and pay the applicable fee.

Furthermore, when a will is challenged on the grounds that the decedent lacked testamentary capacity and the contest is brought before the will is admitted to probate, the burden of proof is on the proponent of the will to show that the decedent possessed the necessary testamentary capacity. This includes self-proved wills. For example, in Reynolds v. Park, 485 S.W.2d 807 (Tex. App.—Amarillo 1972, writ ref’d n.r.e.), the court determined that a self-proved will did not shift the burden to the contestant because the contest was filed before the will was admitted to probate.

The Texas Rules of Evidence apply to will contest cases. The difficulty in prosecuting will contests is that the decedent is dead. The parties cannot simply call the decedent as a witness to ask whether the will is valid and expresses their intent. The court has to rely on other evidence. This typically includes oral testimony and, in some cases, medical records. Texas Estates Code § 55.101 makes the decedent’s medical records available to the parties to a will contest. Physicians are required to release these records pursuant to Texas Estates Code § 55.102. The evidence can also include other records, such as real estate, marriage, and other court records.

Do you need an Experienced Attorney in Probating or Contesting a Will in Court?

If you need help probating or contesting a will in court, it’s important to have an experienced attorney on your side. We can help you navigate the court process and ensure that your rights are protected. Contact us today to schedule a consultation. (915) 292-4400.


Related Questions

Do all wills have to go through the probate process in Texas?

No, not all wills have to go through probate in Texas. A will is only required to go through probate if the estate is worth more than $75,000 or if the deceased person owned real estate in Texas. If the estate is worth less than $75,000 and the deceased person did not own any real estate in Texas, the will can be probated informally.

What happens to an estate if a will is invalid?

If a will is invalid, the probate court will distribute the estate according to the laws of intestate succession. This means that the court will look to see who would inherit the estate if there were no will. The court will then distribute the estate accordingly.

What determines if a will goes to probate in Texas?

When a person dies, their will must go through probate in order to be valid. Probate is the legal process of proving that a will is valid and that the deceased person’s wishes are carried out. In Texas, there are certain circumstances that can invalidate a will and prevent it from going to probate.

If the will was not properly signed or witnessed, it will not be considered valid in court. A will must be signed by the testator (the person who made the will) in front of two witnesses. The witnesses must also sign the will in front of the testator. If these requirements are not met, the will is not valid and cannot be probated.

Another way a will can be invalidated in Texas is if the testator later revokes it. A revocation can be done explicitly (by tearing up the will or otherwise destroying it) or implicitly (by making a new will that revokes the old one). If a court finds that the testator revoked their will, then it cannot be admitted to probate.

Texas courts may also invalidate a will if they find that it was created under duress or undue influence.

What makes a will invalid in Texas?

There are several ways a will can be invalidated in the state of Texas. If the will was not properly executed, it can be declared invalid. This means that the will must have been signed by the testator in front of two witnesses, who must then sign the will as well. If the witnesses did not sign the will, or if they were not present when the testator signed it, the will is not valid.

Another way a will can be invalidated is if the testator was not of sound mind when he or she signed it. This means that the testator must have been of sound mind at the time of signing and must have known what he or she was doing. If it can be proven that the testator was not of sound mind, the will is invalid.

If the will is found to be fraudulent, it is also invalid. This means that someone must have forged the signature of the testator or made changes to the will without the testator’s knowledge. If fraud is suspected, it must be proven in court in order for the will to be invalidated.

Finally, a will can also be invalidated if it is revoked by the testator.

How long do you have by law to file probate after death?

There is no definite answer to this question since it can vary depending on the circumstances. However, in general, you typically have between two and four years to file probate after someone passes away. This time frame is often determined by the state in which the deceased person resided. If you’re unsure of how long you have to file probate, it’s best to consult with an experienced probate attorney in your area.

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