Dealing with the death of a loved one is never easy, and the experience can be all the more difficult when you don’t receive the inheritance you were expecting. Estate planning attorneys frequently get phone calls from potential clients who believe they were treated unfairly and want to contest a loved one’s will. However, just being dissatisfied with how you’re treated in the will – no matter how unfair that treatment might be – is not enough to successfully challenge a will. In order to contest a will’s validity, you’ll need to prove one of the four following grounds:
- Improperly Executed Will. If a will was not signed and witnessed according to the requirements of state law, it is not valid. In Texas, a will must be in writing (meaning typed or printed), and it must be signed by the person making the will, as well as two witnesses over the age of fourteen. The witnesses must be present for the will maker’s signing of the will, and must also witness each other sign the will.
- Lack of Testamentary Capacity. Testamentary capacity simply means that a will maker is old enough and is mentally competent to execute his or her will. In Texas, a will maker generally must be over the age of eighteen and must:
- Know that he or she is making a will and understand the significance of that act;
- Know the nature and extent of the property he or she owns;
- Understand which individuals would logically be his or her beneficiaries; and
- Understand how these elements relate to provide for an orderly disposition of his or her property.
In reality, it is not easy to prove that a will maker lacked testamentary capacity. Simply being very elderly or ill does not mean that a person is incapable of making a will.
- 2. Fraud. Fraud in the making of a will happens when the will maker is tricked. In most situations, the will maker thinks he or she is signing a deed, a power of attorney, or another legal document, but is actually signing a will that does not express his or her true intentions.
- 3. Undue Influence. Undue influence happens when the will maker is under the control of another person. In some situations, an elderly person can be so influenced by someone close to him or her, such as a caregiver, that the influencer’s wishes are substituted for the will maker’s wishes. The result is a will that leaves a disproportionate amount of money to the influencer, against the will maker’s true desires.
Unless a will is invalid on its face, a will contest can be very difficult to win. If you have questions or concerns about a loved one’s will, you should speak to an estate planning attorney.
Stephen A. Mendel, Estate Planning Attorney
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