Will Contests


Will Contests generally occur when a beneficiary under a Will, or a legal heir under Texas probate laws, does not believe that a Will that has been offered (or admitted) to probate, is a valid Will. Some reasons a Will may be invalid is if it was not signed with all the correct formalities required by law; or if the person making the Will lacked capacity to make the Will at the time the Will was signed; or if the Will was the product of someone else’s undue influence.

Lack of testamentary capacity (incapacity) is a question of law but is also very fact dependent. A person lacks testamentary capacity if they are suffering from a mental condition that prevents them from understanding the nature and extent of their property, the identity of their natural heirs, and/or the business they are transacting. A probate lawyer can assist and advise on whether there are sufficient facts to make a Will contest claim based on lack of testamentary capacity.

Similarly, undue influence claims are fact dependent. Undue influence can occur when one person influences another to make a Will, or a gift under a Will, that is contrary to what the person would have done, but for the undue influence. There are some situations and relationships that presumptively raise the question of undue influence. A probate attorney can advise you about the possibility of whether a Will, or a gift made under a Will, was the product of undue influence.

There are other types of Will contests that don’t involve challenging the gifts of property made under the Will, such as challenging the person appointed under a Will to serve as Executor. One type of challenge is if the person named as Executor in the Will is not eligible to serve under Texas probate and estate administration laws, or otherwise lacks the qualifications to serve as Executor. An Executor can also be challenged in probate court even after they have been qualified by a probate court to serve as Executor if they are not fulfilling their duties and responsibilities under Texas estate administration laws. A probate attorney can advise about the duties and responsibilities of an Executor under Texas probate and estate administration laws and whether there is an available legal proceeding to challenge the appointment of the Executor.

Finally, other types of Will contests involve challenging the omission of heirs from a Will who are otherwise legally entitled to inherit a deceased person’s property under Texas probate laws. These heirs include the spouse and/or minor children of a deceased person. If a person has not updated a Will to include a new spouse or later-born child, a cause of action may be brought by these heirs, or their legal guardian, to challenge a gift of property made under an earlier Will that was offered (or admitted) to probate after the spouse/parent’s death. In some cases, it may also be necessary to prove the relationship of this heir to the deceased person when making such a challenge. This is especially true in the case of a common law marriage, or a child whose paternity was never established during the lifetime of the now-deceased parent. A probate attorney can advise and assist with Will contests based on an omitted heir such as a spouse or minor child.

The information provided on this page is for educational purposes only and is NOT legal advice. You should consult a probate and estate administration attorney if you have any questions about the information contained on this page or about your particular circumstances or those of someone you know.


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If you are in the Frisco, Texas area and need an estate planning, probate, guardianship or social security attorney, contact Adriane S. Grace today for a consultation. She is available for legal consultations by telephone or video conference.
Adriane S. Grace accepts estate planning, probate, guardianship, and social security legal matters in Frisco, Plano, Prosper, Allen, McKinney, Celina, Denton, Carrollton, Little Elm, The Colony, Lewisville, Cross Roads, Aubrey, Pilot Point, Oak Point, Richardson, and Dallas.*
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