Will Contests



Only persons who have what is called “standing” can contest a will. In general, heirs and beneficiaries have standing:

  1. Heirs at law are those who would receive less under the last will and testament than they would receive if there were no will. If a man creates a will leaving everything to a friend, his spouse and children could contest that will because if the will were not valid, they would get the estate; and

  2. Beneficiaries who would receive less under the purported will than they would under a prior last will and testament.

An experienced probate litigation attorney can assist you in determining whether you have standing to contest a will being offered for probate.

No Contest Clauses

In terrorem [or forfeiture] clauses are intended to dissuade beneficiaries under a will or trust from filing vexatious litigation, particularly as among family members, that might thwart the intent of the grantor by making the gifts under the instrument conditional on the beneficiaries not challenging the validity of the instrument. In terrorem clauses are strictly construed to avoid forfeiture when possible. Thus, courts have enforced in terrorem clauses only when the intention of a suit is to thwart the grantor's intention.

The determination of whether a forfeiture clause is triggered—whether the contesting party's actions fall within the terms of the forfeiture clause—is a question of law. A breach of a forfeiture clause will be found “only where the acts of a beneficiary or devisee clearly fall within the express terms.”

A provision in a will that would cause a forfeiture of or void a devise or provision in favor of a person for bringing any court action, including contesting a will, is enforceable unless in a court action determining whether the forfeiture clause should be enforced, the person who brought the action contrary to the forfeiture clause establishes by a preponderance of the evidence that:

(1) just cause existed for bringing the action; and

(2) the action was brought and maintained in good faith.

Tex. Estates Code Ann. § 254.005.

Although there is much undefined regarding what falls under the good faith exception, it has long been held that filing suit to determine a testator's intent or to ascertain a beneficiary's interest under a will is not a suit intended to dispute the validity of the will.

Texas courts have addressed a myriad of different types of lawsuits with similarly expansive in terrorem clauses to determine whether the purpose of the suit was to thwart the settlor's intention and concluded that the following suits do not trigger forfeitures: (1) to recover an interest in devised property; (2) to compel an executor to perform duties; (3) to ascertain a beneficiary's interest under a will; (4) to compel the probate of a will; (5) to recover damages for conversion of estate assets; (6) to construe a will's provisions; (7) to request an estate accounting or distribution; (8) to contest a deed conveying a beneficiary's interest; (9) to determine the effect of a settlement; (10) to challenge an executor appointment; (11) to seek redress from executors who breach fiduciary duties; and (12) presenting testimony in a will contest brought by other beneficiaries.

Slayer Prohibition

Texas law does not have a statute specifically dealing with slayers in the estate context, except for parents who kill their children. In fact, such a statute would be unconstitutional. Article 1, Section 21, of the Texas Constitution provides that “no conviction shall work corruption of blood, or forfeiture of estate,” which has been interpreted by the Texas Supreme Court to bar a slayer statute in Texas from preventing inheritance by a murderer. Davis v. Laning, 19 S.W. 846 (Tex. 1892). However, numerous Texas cases have found such prohibition as a matter of common law. In situations where the designated beneficiary killed the insured, Courts in Texas have routinely imposed a constructive trust on the proceeds.

A constructive trust is considered a “creature of equity” designed to correct an injustice. Texas courts clearly have jurisdiction in actions to impose a constructive trust.

To prevent a murderer from profiting by his own wrong, equity will impress a constructive trust upon any assets he received through his victim's will. Whether the trust will be impressed in favor of the heirs of the murder victim or the contingent beneficiary named in the will should be determined according to the intent of the murder victim. Unless established as a matter of law, this intent question is one for the trier of fact and both the heirs of the murder victim and the contingent beneficiary named in the will have a justiciable interest in the controversy.

Undue Influence

An instrument claimed to be a will may not be admitted to probate where it is established that the writing was not the voluntary act of the testator but was procured by the intervention of someone else against the will of the testator.

Undue influence has been defined further as that dominion acquired by one person over the mind of another, which prevents the latter from exercising his discretion, which destroys his free agency, and which compels him to do something against his will from fear, or from a desire of peace, or from some feeling that he is unable to resist. It has also been described as a process whereby one person manipulates the trust, fears, dependency, and vulnerabilities of another for personal gain. Undue influence is a basis for overturning a will, trust, deed, or beneficiary designation. In the context of the execution of a document, undue influence is a species of fraud.

The elements of undue influence in Texas, include:

(1) the existence and exertion of an influence;

(2) the effective operation of such influence that subverts or overpowers the mind of the maker of the document at the time of execution of the document; and

(3) the execution of the document, which the maker thereof would not have executed but for such influence.

Undue influence is rarely as obvious as this story from the Godfather.

Instead, it is typically much more subtle than a gun to the head. And it is not practiced in the open. It is difficult to present direct evidence of undue influence. But Texas courts allow proof of undue influence to be presented by circumstantial evidence. Circumstantial evidence is admissible to prove undue influence and it is proper to receive evidence of all relevant matters that occur within reasonable time before or after execution of will being offered as tending to indicate existence of undue influence at time of execution. All circumstances shown by evidence should be considered, and even though none of the circumstances standing alone would be sufficient to show undue influence, if when considered together they produce in ordinary mind reasonable belief that undue influence was exerted in procurement of will, they are sufficient to sustain this conclusion.

The Texas Supreme Court has observed that “every case of undue influence must be decided on its own peculiar facts.” Among other factors, courts consider:

  • the circumstances surrounding execution of the instrument;

  • the relationship between the grantor and the grantee;

  • the motive, character, and conduct of the persons benefited by the instrument;

  • the participation by the beneficiary in the preparation or execution of the instrument;

  • the words and acts of the parties;

  • the interest in and opportunity for the exercise of undue influence;

  • the physical and mental condition of the grantor at the time of the instrument's execution, including the extent to which she was dependent upon and subject to the control of the grantee; and

  • the improvidence of the transaction by reason of unjust, unreasonable, or unnatural disposition of the property.

A finding of undue influence is appropriate where it is shown that testator is laboring under impaired mental condition not amounting to actual testamentary incapacity at time of will's execution. There may be evidence showing that an impaired mental condition existed which made likely through influence of another the destruction of testatrix's free agency and free will and the substitution of the other's will so as to cause the testatrix to do what she otherwise would not have done but for such other's influence.

The exertion of undue influence cannot be inferred by opportunity alone. There must be some evidence to show that the influence was not only present, but in fact exerted with respect to the making of the document itself. In our experience, an undue influence claim is going to be more persuasive.

If you believe your inheritance was hijacked by undue influence, or if you have been unfairly accused of undue influence, contact a lawyer with experience evaluating such claims.

Mental Capacity

A signor of a will, trust, deed or beneficiary designation must have sufficient mental capacity to understand what they are doing. In short, the person must be “of sound mind.” Generally, the will proponent had the burden to show that testator had the requisite testamentary capacity on the day that she signed will. The elements of capacity in Texas include whether the person executing the document possesses sufficient mental ability at the time of execution of the will to:

(1) understand the effect of making the document and the general nature and extent of her property,

(2) know their next of kin and the natural objects of their bounty, and

(3) have sufficient memory to assimilate the elements of executing a document, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them.

Capacity may be inferred from lay and expert witnesses' observation of the testator’s conduct prior to or subsequent to the document’s execution. Evidence of testator's state of mind at times other than date of will execution may be considered in determining whether testator had testamentary capacity when he signed will if such evidence demonstrates that a condition affecting testamentary capacity was persistent and likely present at the time the will was executed.

The types of evidence relevant to the consideration of capacity vary depending on the circumstances of the case. Typically, lack of capacity can be indicated by:

  • Dementia, including Alzheimer’s, lewy body, senility

  • Stroke

  • Drug use, whether recreational or for pain

  • Brain tumors

  • Memory loss

  • Severe Depression

  • Intense pain

  • Bipolar disorder

  • Schizophrenia

  • Cerebrovascular disease

  • Atherosclerotic heart disease

  • Hardening of the arteries

  • Impaired executive function

Drugs and alcohol can obviously affect a person’s mental status. Drugs can be ones that are properly prescribed, as well as recreational controlled substances. Evidence the testator took either can be extremely relevant to capacity. A Texas court has even noted it was relevant a testator was taking medication causing hallucinations in the year before signing the new will. Evidence the testator was drinking or taking medications or drugs around the time of the will is even more powerful.

A stroke may affect the frontal lobe of the brain, which controls a person's ability to make decisions, process information, and sequence information. Because there are no lab tests or blood tests that detect dementia, diagnosis is reliant on abnormalities in a person's behavior. The diagnostic “gold standard” in psychiatry is the clinical examination. However, a retrospective analysis of records is a generally accepted method when evaluating mental and testamentary capacity.

Declarations which because of their apparent disordered, unreasonable and abnormal character would be unlikely to be prompted by sound mind are admissible to prove want of mental capacity. Declarations rational on their face may be admitted to evidence, along with proof that they are, in fact untrue, to show decedent's mental shortcomings; thus, erroneous declaration that certain property is owned or not owned is admissible as evidence of mental state not meeting the requirements for making of a will.

Here is the type of evidence cited by a Texas court of appeals to demonstrate a lack of capacity:

The testatrix was not knowledgeable about the nature and extent of her property at the time she saw her doctor and attorney. Testatrix had described her house containing a great deal of furniture that she cherished, including a piano. She also alluded to a small business from which she drew a monthly income and ownership in stocks and bonds.

Later evidence revealed that the house and furniture had already been conveyed to appellees and the conveyance had been confirmed by court order following litigation. The small business that she claimed to own had been sold to a third party many months prior to the time she saw her doctor, as had the piano.

No evidence was adduced indicating that testatrix ever owned an interest in stocks and bonds.

Her doctor stated that testatrix told him she had three nieces, one nephew and one grand-niece. In fact, testatrix had two grand-nieces, two nephews, and a grand-nephew.

Another court noted:

Testimony of treating physicians regarding testamentary capacity could be considered even though physicians did not examine testator on day she signed will, given that testimony, which was based on testator's mental and physical condition and was supported by overall evidence, indicated that testator had experienced extensive periods of incoherence for years before will was signed and that Parkinson's disease, from which testator suffered, caused degeneration of brain affecting ability to think clearly and process information.

Evidence that testator could respond rationally to conversation at or near the time that she executed will offered for probate and that her illness did not preclude her from having some lucid moments did not render jury's finding that testator lacked testamentary capacity clearly wrong and unjust, so as to warrant reversal based on factual insufficiency, given evidence that testator was experiencing periods of incoherence years before will was executed and that her physical and mental condition and medications made it unlikely that she was able to understand and participate meaningfully in making and execution of will.

As a general rule, the question of whether a person, at the time of contracting, knows or understands the nature and consequences of her actions is a question of fact for the jury. Often medical records and expert testimony will be used to support a challenge to capacity.


When a will has been executed with proper formalities and has been found without suspicious circumstances in a proper location, a rebuttable presumption that it has not been revoked, the so-called “presumption of continuity,” arises in favor of the proponent of the will. The burden then shifts to the contestant to introduce sufficient evidence of revocation. If the contestant is able to do so, the presumption of continuity disappears and the burden of evidence shifts back to the proponent. However, oral testimony that testator executed a document revoking a prior will may be sufficient to rebut the presumption of the continuity of the will.

To establish revocation of written will by execution of subsequent will, codicil or written declaration with like formalities, it must be shown that testator was of sound mind when she executed subsequent instrument, that she intended to revoke original will and that revoking instrument was executed in accordance with prescribed formalities.

While the subsequent instrument must be executed “with like formalities,” this does not mean that a typewritten, attested will can be revoked only by a later typewritten, attested instrument, or that a holographic will can be revoked only by a later holographic instrument. A holographic will can revoke an attested will, and vice versa, so long as the revoking instrument is in accordance with the legal requirements.

The standard way to revoke a will is by executing a new will that contains an expressed revocation clause, i.e., “I revoke all earlier wills and codicils.” However, if a later will makes a complete disposition of the testator's property, it revokes all prior wills by implication. The question of revocation is left to the factfinder.

Probating a Copy of a Will

Texas law does not strictly require that the proponent of a will provide the original will to the court. However, a copy is treated differently than an original will, A copy of a will is not a will, just as a copy of a $100 bill is not a $100 bill. When there is no original produced, there is the possibility that the testator destroyed the original. Or the copy may have been altered.

When the original will cannot be located and the will was last seen in the testator's possession, a presumption arises that the testator destroyed the will with the intent of revoking it. The proponent must overcome this presumption by a preponderance of the evidence. One can meet this burden with evidence of circumstances contrary to the presumption or with evidence that some other person fraudulently destroyed the will. Evidence that the decedent recognized his will's continued validity and had continued affection for the primary beneficiary of his will, without evidence that he was dissatisfied with the will or had any desire to change or cancel it, is sufficient proof of circumstances contrary to the presumption.

Texas Estates Code Section 256.156 sets for the requirements for a written will which cannot be produced in court:

(a) A will that cannot be produced in court must be proved in the same manner as provided in Section 256.153 for an attested will or Section 256.154 for a holographic will, as applicable. The same amount and character of testimony is required to prove the will not produced in court as is required to prove a will produced in court.

(b) in addition to the proof required by Subsection (a):

(1) the cause of the nonproduction of a will not produced in court must be proved, which must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced; and

(2) the contents of the will must be substantially proved by the testimony of a credible witness who has read either the original or a copy of the will, has heard the will read, or can identify a copy of the will.

This section allows for not only a copy to be probated, but also to probate a will that cannot be produced at all. The latter is obviously going to be difficult, since it requires testimony of a disinterested witness who can credibly recite the material contents of the lost will. While it is not necessary to establish all of the contents of an alleged lost will literally or verbatim, it is necessary to establish its material contents with some degree of certainty in order to be able to pass title to the property devised and such is particularly true of land. The statutory requirements for substantial proof of the contents of an alleged lost will have not been satisfied so long as the court is left in confusion about the real provisions of the will or how to vest title to the property involved.

Generally, where an unproduced, written will was in the possession of the testator or he or she had ready access to it when last seen, the failure to produce the will after the death of the testator raises a presumption that the testator destroyed the will with the intention to revoke it, and the burden is cast upon the proponent to prove the contrary. To show revocation of previous will, where alleged revoking will was not produced at trial because, according to testimony, it had been lost, it was not necessary to prove execution of lost revoking will by method of proof prescribed by statute for proving lost wills offered for probate.

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