Houston Estate Planning and Elder Law Attorney Blog
Even the most diligent of individuals may not anticipate a contest to their will’s validity when estate planning. Planning for your own potential incompetence or fights about your intention between family members can be upsetting and may even seem far-fetched. Unfortunately, planning for the worst-case scenario can help avoid major headaches in the probate process.
Why Can a Will Be Contested?
Understanding the ways a will can be contested can help in the planning process. Common objections can be, as noted above, that the will maker (or testator) was incompetent or was suffering a delusion. This can encompass a wide variety of circumstances, including dementia and Alzheimer’s disease, stroke, drug or alcohol use, an array of mental disorders such as schizophrenia and depression, and some physical ailments that implicate capacity.
In addition, objectors can claim undue influence or other outside factors like fraud and coercion or duress or mistake. Courts will consider all relevant factors when determining if undue influence is present, including circumstantial evidence that does not directly prove the fraudulent behavior but, taken as part of the whole story, indicate a problem existed.
Contests can also be about the legal validity of the execution of the will. Common instances of this are lack of signature or witness, or any of the formalities required under Texas law.
An objector could also believe that the testator created a later, valid will that was intended to displace the previous will in contest. There is a rebuttable presumption that wills have not been revoked, especially if the circumstances are suspicious. Those contesting the will have a burden to show evidence the revocation was intended. It is still up to the court to determine which will is valid. The court will also determine if the testator met all requirements for capacity, mental soundness, and absence of undue influence in determining if the new will is valid. Revocation clauses are standard ways to revoke a will, but later wills imply revocation if they completely cover all of the individual’s assets.
Who Can Contest a Will?
If someone objects to the will, they must also have standing. This generally means heirs and beneficiaries who would not receive as much under the will being contested than they would without a will or under a prior will. For example, if a person has a spouse and children but leaves everything to charity or a niece or nephew, the spouse and children could contest the will.
Texas Estate Planning Attorney
Will contests are stressful for your family and loved ones—and may result in your wishes not being carried out. Avoid the hassle by carefully planning your last will and testament with an experienced Houston estate planning attorney. McCulloch Miller, PLLC will make sure to carefully understand your goals and make a comprehensive plan that you can feel secure about. The team can also help you update your will legally and securely. Contact our office at 713-936-9073 to schedule a consultation with an attorney on our team.