Please read our page with frequently asked questions on Contesting a Will issues. Feel free to contact us if you need any other clarifications.
Until the Will is offered for probate, the deadline to contest the Will does not start. You have two years from the date the Will is actually probated to file a contest.
No. You can file a contest up to two years after the Will is probated. Delay can be to your serious disadvantage, so act as quickly as possible.
Yes. You can file a contest as soon as a Will is offered for probate. Sometimes that is best since it blocks the potential executor being appointed and getting control of the estate assets.
No. In the State of Texas, we do not allow a Will contest in advance of a person’s death. Even if you know that you have been cut out of a Will and you believe the person lacks capacity to do so, you cannot file a Will contest. However, you should seek legal counsel on what you can do to prepare for a contest or what other legal actions you can take now.
A Will must be properly executed in compliance with the statute, principally to be signed before two witnesses or to be wholly in the handwriting of the testator (the person writing the Will). A Will can be contested if the testator lacks “testamentary capacity.” If the testator wrote the Will under “undue influence,” the Will can be set aside.
Testamentary capacity is the legal standard to determine whether someone has enough mental ability to write their own Will. A person must have the ability to know their family, to know their assets, and to know how they would want to divide them, free of influence.
A Will written by a patient in a hospital or long-term care facility is not immediately invalid, but it raises questions whether they were well enough to draft a Will. Someone can be on such high doses of medication, including pain killers, or have severe dementia to prevent them from writing a Will.
It is not wrong for someone to encourage another to leave them property in a Will. That is normal influence. Influence becomes “undue” when someone is pressured in a manner that they are unable to normally resist. Someone who is mentally weak or physically infirm is more susceptible to “undue” influence. Undue influence is almost always proven by circumstantial evidence, and it takes a skilled lawyer to identify the correct facts and circumstances to build a substantial case of undue influence.
Contesting a Will can be very expensive and difficult to prove since the person filing the contest often lacks financial records and medical records necessary to prove the improper actions of another person. Attorneys sometimes take these cases on contingent fee arrangements (taking a percentage of potential recovery), but such decisions are made on a case by case basis. A substantial investment is needed to contest a will, including the expense of obtaining past financial and medical records, hiring a medical expert, hiring a handwriting expert, or other out-of-pocket expenses, in addition to the significant attorney time involved.