Most Texas wills are valid and sail through the probate court without a hitch. Every so often, however, a relative may disagree with the bequests in the will and decide to challenge the validity of the will. A will challenge is perhaps the most contentious form of probate litigation because it often pits one family member against another. For large estates, however, the challenge could be worth thousands or even millions of dollars. The grounds for a successful challenge are not especially complicated.
Perhaps the most common ground for a successful challenge to a will is to prove that the testator failed to follow the formalities prescribed by Texas law. The will may not have been witnessed or properly executed by the person making the will – the testator. If the will is hand-written, the entire will must be in the testator’s handwriting. If even one paragraph is in another handwriting, the will might be totally invalidated.
A second common basis for invalidating a will is a showing that the testator lacked either legal or mental capacity to make the decisions stated in the will. The ordinary basis for such a challenge is a showing that the testator suffered senility, dementia, was under the influence of a substance that destroyed or limited the person’s mental ability to form a will. The person challenging the will must show that the testator did not understand the nature and value of the property that was being devised, did not comprehend the identity of the beneficiaries, did not understand the legal nature of a will and did not understand how a will would affect the distribution of the testator’s property.
A third category of reasons for invalidating a will is proof of fraud, forgery or undue influence. If someone has manipulated a vulnerable person, say an elderly parent, to exclude certain persons from the will, the will can be invalidated. Undue influence generally means an act or group of actions by a person other than the testator that deprived the testator of the free will to make testamentary decisions.
Challenging a will can be an excruciating and expensive process. A person who is considering a challenge may wish to consult an experienced probate attorney about the expenses and chances of success.