Do All Heirs Have To Join A Will Contest?

In Rem Proceedings

Will Contest in Texas are in rem proceedings which means that notice to all the heirs is not required. It is up to each interested party to keep themselves apprised of the status of any probate case. Tennessee is also an in rem state as far as contesting a will is concerned.

Do All Heirs Have To Join A Will Contest in Texas?

A will contest may be brought by anyone interested party, and all other interested parties are free to join the contestant, join the proponent, or stand aloof. But, if they don’t join and there is a settlement agreement, they may be left out as stated by the Tennessee Supreme Court; and see E2016-02497-COA-R3-CV.. Those that join the will contest may settle and if they do so in good faith, the compromise of the will contest will not inure to the benefit of those heirs not participating. The heirs not involved in the suit may lose their inheritance unless they can show some form of bad faith by the parties to the suit. In 2017, a Pennsylvania Superior Court also held that an heir who did not participate in the will contest and was left out of a settlement agreement, could not do anything about it. The heir would have received his share if he had participated in the will contest but since he did not participate, he could not challenge the settlement that excluded him. 2620 EDA 2016.

What You Should Do

If someone you love has died and there is an inheritance dispute between the heirs, all heirs should participate in the proceeding. If an heir does not join, there is a chance that they will lose an inheritance that is rightfully theirs.

Agreement Not To Contest A Will

Agreement not to contest a will.Background

Although this blog is only about Texas law, a recent case out of Delaware dealt with an unusual issue and the results should be the same in Texas if the issue ever comes up. The Delaware court in 2015 was asked to decide if an agreement not to contest a will would support a suit for damages. The facts recited in the opinion are set out as follows: “In his complaint, Paul alleges that their mother had wanted to renounce the 2004 Will and create a new will leaving Paul the family home and 50 percent of her remaining estate; however, she was prevented by Charles from doing so. After their mother’s death, Paul confronted Charles about his actions, and Charles agreed to honor their mother’s wishes and share her estate with Paul in exchange for Paul’s agreement not to contest the 2004 Will.”


When Charles breached the agreement, Paul filed a breach of contract suit against Charles for damages. Charles asked the court to dismiss Paul’s suit because the alleged contract between Paul and Charles was (more…)

Can a person you don’t know end up owning your estate?

Yes they can. Look up Marilyn Monroe’s estate. She gave the largest part of her estate to her acting coach. She had become friends with him and his wife. She directed that “it being my desire that he distribute these, in his sole discretion, among my friends, colleagues and those to whom I am devoted.” In his sole discretion, he decided to keep everything.

After Marilyn died, the acting coach’s wife died and he remarried a woman that Marilyn did not know or maybe had met only once. The new wife was 40 years younger than him.  When the acting coach died, he left everything to his new wife who now controls the estate. Forbes estimated that Marilyn Monroe’s estate is the eighth largest income producing estate.

To avoid a similar situation with your estate, have an attorney review your will to make sure that it disposes of your property the way you want it to. We do not prepare wills. We only handle contested inheritance litigation so this is not a plea to give us work. It is just a cautionary tale that you can think about and avoid by seeing an attorney to make sure that you estate is in order.

Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.

Will a forged will always be set aside?

Forged willNo, says the Waco Court of Appeals.

In a case decided in 2011, a testator had children from a prior marriage. A will was filed for probate leaving everything to his second wife. One of his children contested the will. During the contest, a family settlement agreement was reached. As part of the family settlement agreement, the will contest was dropped and the will was admitted to probate. Several years later, the daughter found out that one of the second wife’s children had forged the will with the help or knowledge of the second wife. She filed suit to set aside the forged will.

In upholding the trial court’s dismissal of the suit, the Court of Appeals said that the suit to set aside the will was not filed within the time required by the statute of limitations and could not be brought even though the will was forged!

Knowing what to do

This case is another clear message from the courts: if you have questions about a will, you better act promptly or you won’t be able to  question the will even if it is forged. This case also illustrates the necessity of knowing what cause of action needs to be filed and the consequences of filing the wrong cause of action.  10-09-00275-CV.

Can beneficiaries agree not to be bound by a will?

The quick answer is yes, they can.

Texas recognizes what are called “family settlement agreements.”  A family settlement agreement will be enforced by a court even if the distribution of the assets under the agreement differ from the distribution of the assets under the will.  A family settlement agreement is an alternative method of administration in Texas that is a favorite of the law.

To be enforceable, the family settlement agreement must:

  1. be agreed to by all of the heirs and beneficiaries;
  2. provide that a purported will shall not be probated; and,
  3. provide for a plan of distribution of the estate to replace the one in the will.

Family settlement agreements may come about when the will does not treat the testator’s children equally but all of the children want to split the estate equally.  This happens when a parent and a child are estranged at the time of the execution of the will.  The family may want most of the estate to go to a less fortunate sibling who is not doing as well financially as the others.  There may also be tax reasons to enter into a family settlement agreement.

Family settlement agreements may also be used to settle will contest cases.

Can two people enter into a contract to make their wills a certain way?

Can Two People Contract To Make Their Wills

This question usually comes up when a husband and wife make their wills simultaneously. The question can also come up when a testator enters into a contract with another person, with the testator agreeing to provide for him in his will if the other person will do something for the testator, like taking care of him.

A mutual or contractual will is one executed pursuant to an agreement between the testators to dispose of all their property in a particular manner, each in consideration of the other. Texas courts view claims of contractual wills cautiously. Contractual wills can be established only by full and satisfactory proof, and no presumptions or inferences are indulged in favor of them. To establish that a will is contractual, a two-prong test must be met.

  1. First, the property at issue must not be conveyed to the survivor as an absolute and unconditional gift.
  2. Second, the remainder of the estate of the first to die and the estate of the last to die are treated as a single estate following the death of the survivor, which is jointly disposed of by both testators in the secondary dispositive provisions of the will.

A contractual will can be established only by the provisions of the will itself, or the provisions of a binding and enforceable written agreement. The mere fact that the testators signed a joint will, or that they frequently used the pronouns we, us and our does not establish the fact that the will was executed pursuant to an agreement to make a mutual will. A contractual will is different from a joint will. A joint will is just one document that has the testamentary wishes of two people. It is not contractual.

In a recent case, the husband and wife executed wills on the same day. The will concluded by saying.

“I have executed this Last Will and Testament concurrently with my said wife, (wife), having executed her Last Will and Testament, a copy of which is attached hereto and made a part hereof, both of said Last Wills and Testaments having been executed in accordance with a contract between us, and this is to acknowledge that both said wills are contractual and can not be revoked without the written consent of both myself and my wife.”

Husband died first. He owned a house and land before this marriage so it was his separate property. His will left the house to the wife using the following language: “It is my will and desire that my home …, shall pass to and vest in my wife, (wife), and I do hereby devise said real property to her.”  The will went on to say that if the wife died first, the house would go to his children by a prior marriage.

The testator’s children claimed that the will was contractual. The wife claimed that the will was not contractual and that it gave her the house free and clear. The court agreed with the wife. It held that the gift of the house was unconditional. The will was not contractual because it did not meet the requirements of being a contractual will as set out above. 185 S.W.3d 16.

The results of the above case are based on the presumption against contractual wills. If you want a contractual will, it must be made exactly the correct way, or the courts will apply the presumption that it is not contractual.

In any event, a contract about will must be written. Oral contracts to make a will a certain way will not be enforced. §254.004(a). 04-16-00641-CV. Some states like Virginia accept oral contracts to make a will. Texas does not. In Texas, a contract to make a will must be set out in the will or in a separate written contract.

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