Contesting a Will Because of Fraud in the Factum

Fraud in the Factum” occurs when a testator is misled as to the nature or content of the instrument being executed. A mistake of fact or law must be accompanied by evidence of fraud or undue influence to defeat the will’s admission to probate.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Contesting a Will Because of Improper Execution of the will

Contesting a Will Because of Improper Execution of the will

Proper Execution of Will

In Texas, wills must be executed with proper formalities. If it is not executed with those formalities, the will not be admitted to probate and the deceased’s property will go to his heirs through the law of descent and distribution. In other words, the deceased will die intestate (without a will.)

Proper execution generally requires that:

  1. The will be in writing;
  2. Signed by the testator;
  3. It must be signed with testamentary intent;
  4. The testator must know and understand the contents of the document; and
  5. If not wholly in the handwriting of the testator, it must be witnessed by two credible witnesses who sign the will in the presence of the testator.

Witnesses

In a 2016 case, the proponent of a will tried to probate it where her brother was the only witness to testify. The other witness was too ill to come to court and testify. Since she only had one witness instead of the required two, she said that the notary’s signature should be used as the second witness. The notary was not called to testify. The court distinguished those case where a notary was considered as a witness even though she didn’t sign as a witness. The court noted in all those case, the notary was called as a witness and testified. The court declined to admit the will to probate because of improper execution, e.g. it only had one witness.

In a 2009 case, a husband and wife signed a joint will, there was only one witness. The appeals court allowed the husband’s will to be probated by ruling that the wife’s signature on the will plus the signature of the one witness satisfied the requirement that there be two witnesses. 346 S.W.3d 1.

Signature placements and marks

Texas is very lenient about what can constitute a signature and where it appears in a will. Initials and the mark “X” have been upheld as valid signatures on a will. I have written about that issue on my blog and you can read it here. The placement of the signature on the will is also treated leniently by Texas courts. I have also written about that issue on my blog and you can find it here. Both of these issues e.g. placements and marks for signatures lead to will contest in Texas. Because it is not an ordinary will and an ordinary signature there are many issues that the court must decide before the document is admitted to probate.

Corrections to a will in Texas

Once a Texas will is properly executed, pages cannot be changed or replaced unless the will is re-executed with the same formalities required of a new will.

In a case decided in 2013, a Texas Court of Appeals had to decide an issue relating to the time frame in which corrections of some of the pages in a will occurred. There was no question that the will contain mistakes and that they were corrected. The question was whether the corrections were made after the will was executed or before. The first thing that the court ruled on was who had the burden of proof. They ruled that the person who was claiming the will was corrected after it was executed had the burden of proof. While there was some conflicting evidence, the trial judge ruled that the corrections were made before the will was executed. The appeals court ruled that the person claiming that the will was executed before the corrections were made did not meet their burden of proof and therefore ruled against them. No one stated directly that the will was corrected after it was executed. There was just some circumstantial evidence that the attorney took the will back to his office at one point, made the corrections, and returned but no one said definitely this took place after the will was executed. The will was admitted to probate. No. 05-11-00246-CV.

In a 2018 case, the appeals court described it as follows: “This is the case of the blinking testator. In October 2015, Michael Lynn Luce was in a serious accident that left him a quadriplegic. A week after he was admitted to the hospital, Michael was intubated, which rendered him unable to speak. Paralyzed from the chest down and unable to speak, Michael was able to communicate by blinking his eyes to indicate “yes” and “no.” Using this blinking system, Michael’s attorney was able to draft a will based on Michael’s blinked responses to a series of leading questions, and through this system, Michael directed a notary to sign the will for him.” The court thought the blinking system was sufficient to establish Testator’s directions, therefore, the will was validly executed. 02-17-00097-CV.

For a discussion on what order the parties must sign the will, click here.

Contesting a Will Because of Forgery

Contesting a Will Because of Forgery

It almost goes without saying but if a Texas will is forged, it will not be admitted to probate.

A person’s signature can vary fiom one document to the next due to age or physical infirmities, or evenbecause he was “rushed” during the signing process. A claim of forgery” can best be proven or defeated by other evidence of the person’s handwriting or signature at or about the same relevant time under the same or similar circumstances.

Update: in a 2018 case, Husband died and Wife probated his will. Daughter later intervened claiming that Husband’s signature on the will was a forgery and thus she would be a beneficiary under a prior will. Daughter introduced evidence of a handwriting expert who examined dozens of Husband’s documents and who concluded that the signature on the will was a forgery. The court denied daughter’s forgery claim. The appellate court held that the in writing expert did not show that he used admissible signatures to compare with the signature of the will. His opinions were also conclusory not based on fact. 08-16-00270-CV.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Revoking A Will In Texas

Revoking A Will In Texas

There are two ways to revoke a will in Texas: by subsequent testamentary instrument or by physical act. The Texas Estates Code, §253.002, specifies these two exclusive ways that a will can be revoked. Section 253.002 says:

“A written will, or a clause or devise in a written will, may not be revoked, except by a subsequent will, codicil, or declaration in writing that is executed with like formalities, or by the testator destroying or canceling the same, or causing it to be destroyed or canceled in the testator’s presence.”

Subsequent Testamentary Instrument: To revoke a will in Texas by subsequent testamentary instrument, the testator must have testamentary capacity. If he does not have testamentary capacity, the attempted revocation by a subsequent will is ineffective. If the subsequent will is not admitted to probate for some reason, i. e., the will was denied probate because it was the result of undue influence for example, it is void in toto, every provision of it, and it cannot serve to revoke a former will. 761 S.W.2d 448. But, see the doctrine of Dependent Relative Revocation. The testamentary instrument used to revoke a will, does not have to be a will itself. As long as it is in writing and executed with the same formalities of a will, a paper saying as little as “I revoke my will” is sufficient to revoke a prior will.

Since revocation by implication is not favored, if the testator has a will and then executes a subsequent will that does not specifically say he is revoking the first will, the two wills will be read together as much as possible and the second testamentary instrument will be treated as a codicil to the first will.

Revival of revoked wills: when a testator executes a will and then subsequently executes a second will revoking the first will and then later on decides that he wants the first will to be his will, merely destroying the second will will not revive the first will. In order to revive the first will, the testator must re-executed it with the formalities required by law.

Physical Act: The physical act of revocation by destroying the will must be the destruction of the will itself. The intent to destroy without actually destroying the will is insufficient. In one case, the testator tore up an envelope which he thought contained the will. It did not contain the will and the court held that his intention to destroy it without actually destroying it did not revoke the will.

The physical destruction must be of the entire will. A testator cannot destroy a sentence or a paragraph in a will such as scratching through them. The strikeout will be ignored by the courts.

There are some statutes that revoke portions of the will without any action by the testator. For instance, if a testator makes a will and then later divorces his spouse who was named in the will, all provisions in his will in favor of the divorced spouse are void. Likewise, if the testator executes a will and then later has a child who is not mentioned in the will or otherwise provided for, the law will allow the child to take a portion of the testator’s estate. The child is a pretermitted child.

Giving the estate to others: If a new will does not mention revoking prior wills but gives the entire estate to someone else, the new will impliedly revokes the prior will. 01-15-00855-CV.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Contesting a Will Because of an Insane Delusion

Contesting a Will Because of an Insane Delusion

A claim of “insane delusion” resembles a claim of lack of testamentary capacity and is sometimes considered to be a sub-category of testamentary capacity. An “insane delusion” is the belief of supposed facts that do not exist, and

  1. which no rational person would believe.

The courts have held that a testatrix’s conviction that one or both of her disinherited children were responsible for deceased’s son’s death entitled contestants to jury instruction on insane delusion as belief would not have been entertained by “rational” person.

A contestant seeking to set aside a will on the grounds of insane delusion must also show that the delusion caused the testator to dispose of his property in a way which he would not have “but for” the insane delusion.

Under Texas law, a testator lacks testamentary capacity if the terms of his or her will are influenced by an insane delusion. An insane delusion is defined as “the belief of a state of supposed facts that do not exist, and which no rational person would believe.” If there is a foundation in fact for the belief, the belief is not an insane delusion, “even though the basis may be regarded by others as wholly insufficient.” A mere misunderstanding, mistake of fact, or illogical conclusion does not amount to an insane delusion. Rather, the misconception of fact must be “due to some organic defect in the brain or some functional disorder of the mind.” Thus, to support a claim for insane delusion, there must be evidence “not only of a mental error affecting the terms of the will, but that the persistence of this mental error was caused by defective cerebration.”

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

5 Grounds For Contesting Wills In Texas

5 Grounds For Contesting Wills In Texas

When a will is offered for probate, it is offered as the last will of the testator (the person whose will it is), made at a time when the testator knew what he was doing and who was not being unduly influenced to make the will.

The most common reasons to contest a will are because the testator did not know what he was doing or that some other person was controlling the testator to such a degree that the testator made a will that he would not have made if he wasn’t under the influence of the other person. As evidence, the contestant would point out one of the items in the list as showing why the testator was not in control. Because the testator is usually an elderly person, they might not have been competent to make the will when they did or, even though they were competent, they were under such undue influence of another person that they made a will that they really didn’t want to make.

GroundsDefinition Of Grounds For Contesting A Will In Texas
Testamentary CapacityThe Testator: understands that he is making a will; understands the effect of the will; knows what property he has; knows his family; and, has sufficient memory to understand these elements and their relationship to each other.
Undue InfluenceUndue Influence means that: an influence existed and was exerted; the influence undermined or overpowered the mind of the Testator at the time he signed the document; and, the Testator would not have signed the document but for the influence.
Execution of Will – Written WillThe will must: be in writing; signed by the Testator in person, who was of legal age; be attested by 2 or more credible witnesses who were at least 14; who signed the will in their own handwriting and in the presence of the Testator; and, the Testator signed the document with the intent to dispose of his property after his death.
Execution of Will – Hand Written   The will must: be wholly in the handwriting of the Testator; signed by him; who was then of legal age; and, the Testator signed the document with the intent to dispose of his property after his death.
FraudFraud means: a person makes a material misrepresentation; the misrepresentation was made with knowledge of its falsity or was made recklessly without knowledge of the truth as a positive assertion; the misrepresentation was made with the intention of inducing the Testator to sign the document; and, Testator relied on the misrepresentation in signing the document.

If any of the items listed in the Defintion Of Grounds For Contesting A Will in Texas are missing, then the will will probably be set aside. The grounds of the will contest have to be that the will is not the will of the testator either because the testator was not mentally competent, was mistaken or was under undue influence. Read more about the grounds for contesting will here.

Some other reasons for contesting a will are that an old, outdated will is offered for probate rather than the testator’s most recent will; a forged will is offered; or, the will was not made with the formalities required by law.Time is of the essence in these types of matters so if you think that you need legal advice concerning the probate of a will, contact us immediately.

A law school professor has written a paper on six common reasons wills are contested. Professor Beyer lists the reasons as:

  1. Disinheritance of close family members in favor of a distant relative, friend or charity.
  2. Unequal treatment of children.
  3. Sudden or significant change in disposition plan.
  4. Imposition of excessive restrictions on bequests.
  5. Elderly or disabled testator.
  6. Unusual behavior of the testator.

The list above are reasons why people are contesting a will but are not the grounds for contesting a will. While this list is not exhaustive, most will contest are started because of one of the six items in the list.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Pin It on Pinterest