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Contesting a Will

Should I contest a family member’s will?

If you have a family member that has left a will, you can choose to contest that will in court if you believe there is reason to do so. You must first have grounds to be able to contest the will. The grounds for contesting a will are laid in the Texas Estates Code, there are statutory and non-statutory grounds.

Statutory Grounds

Statutory grounds, those that are listed in the Texas Estates Code, are 1) that the will was not admitted to probate timely 2) the will is not valid, i.e. not signed properly 3) that the family member did not intend for the document to be their last will and testament 4) the family member was not an adult and not of sound mind 5) that a copy is being admitted to probate and the proponent of the will has not proved the original to be lost and 5) that the will was revoked by your family member.

Non-Statutory grounds

These types of grounds are not based on the Texas Estates Code, but are backed by certain Texas case law history. They include 1) the will resulted from someone else overpowering the family member to make a will 2) “fraud in the factum” meaning the family member was misled as to what the will contained 3) that the will was forged or 4) that the will was contingent on something happening (dependent on an occurrence) and it never happened.

The first thing you and the attorney will need to determine is if the will has been admitted to probate. Whether it has or hasn’t will determine who has the burden in the proceedings. If you are contesting the will before it is admitted to probate, the person trying to probate the will has the full burden to prove that the will is legal, valid, and should be probated. If the will has already been admitted to probate, you as the contestant, will have the burden to prove your grounds for contesting the will, i.e. that the will is fraudulent, etc.

What if the will has a no-contest clause?

This is a common clause drafted in most wills drafted by attorneys. It states that if a person who receives a bequest under the will, contests the will, they cannot receive their bequest. If you find that you have rights to property under the will and you contest the will you forfeit those rights under the no-contest clause. But, Texas Estates Code section 254.005 states that there is a defense to the no-contest clause if you can show by a preponderance of evidence that 1) you had just cause to contest the will AND 2) you are contesting the will in good faith, i.e. you have a fair and honest reason for contesting the will.

At this point, if you think you have reason enough to contest the will, you can hire an attorney to help you take the case to trial or sometimes it can be worked out in a family settlement agreement, depending on the circumstances of the case.

At Guest and Gray, we offer free consultations and can help you decide if you are in a situation where you should contest a loved ones will, although a difficult decision to make, we are here to help.

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