SMITH & GARG, LLC

By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress and Huntsville

Just because a person leaves a Will doesn’t mean that it automatically govern the distribution of the decedent’s property. Sometimes, heirs or potential heirs believe there is a reason to doubt the Will that was filed for probate. The proper procedure to contest a Will is a Will Contest.

Although the Texas Probate Code allows for any party interested in an estate to contest the Will, Will Contests are generally complicated and costly. An “interested person” is defined as one who is an heir, devisee, spouse, child, creditor, or anyone having a property right in or claim against the estate.

Reasons for contesting a will include alleged forgery and/or other fraud, as well as assertions that the testator either lacked the necessary mental capacity to make the Will or was someone upon whom undue influence was exerted. These are complex issues that have long been litigated in Texas courts the resolution of which is likely to be costly and time consuming. It is, therefore, prudent to seek counsel of a probate attorney to counsel you on the ins and outs of a Will contest.

There is a limitations period associated with a Will contest. Section 93 of the Texas probate code dictates that after a will has been admitted to probate, any interested person may file suit in the proper court to contest the validity thereof, within two years after such Will shall have been admitted to probate, and not afterward, except that any interested person may file suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward.  Provided, however, that incapacitated persons shall have two years after the removal of their disabilities within which to institute such contest. What this means in plain English is to contest a Will, you have to file the lawsuit before the two-year anniversary of the date the Will is admitted to probate. If your contest basis is that there was a forgery or fraud, then the two year limit begins to run at the time the forgery or fraud is detected. If the person contesting the Will is a minor or otherwise incapacitated person, then the statute begins to run once the disability (reaching the age of 18 for example) is lifted.

Not just anyone can contest a Will. The contesting party must be an interested party: a distributee, creditor, debtor, trustee, executor, etc. The effect of contesting a will does not constitute tortuous interference with the will probate. If a will is successfully contested, the court may throw out only the part of the Will that was challenged successfully, admit an earlier Will, or if there is none, the estate be distributed to the testator’s relatives pursuant to the governing laws of intestate succession.

Some Wills contain a “No Contest” clause, which generally states that any beneficiary who challenges a Will, whether successful or not, will not take under the Will. As can be imagined, this has (and is intended to have) a chilling effect on Will contests.

We invite you to contact us for a consultation. Call Smith & Garg, LLC at 1-877-517-4275 or complete our contact form.