What You Need to Know about the Burden of Proof in Contesting a Will

What You Need to Know about the Burden of Proof in Contesting a Will

Will Contest in Texas

In Texas, when someone dies, they may leave behind a will. Sometimes, people may disagree about what the will says or whether it is valid. Then, they may go to court to ask a judge to decide. Who has the burden of proof at this stage can be important.

This is what happened in a case called Castello v. Castello, 03-22-00012-CV. In this case, a man named Frank Castello died in 2018. He had a wife named Cindy and three children from a previous marriage. He also had a will that he made in 2012. In his will, he said that he wanted to give his wife the right to use his property for her life, but after she died, he wanted his children to get everything. He also chose his son Mark to be the executor of his will. The executor is the person who is in charge of carrying out the will.

The Contest in Castello

Cindy contested the will. She said that Frank did not have the mental ability to make a will in 2012. She said that he had a stroke in 2006 and that his condition got worse after that. She said that he could not remember things, recognize people, or make decisions for himself. She also said that she had another will that Frank made in 2009. In that will, he gave her more property and less to his children. Cindy wanted the 2009 will admitted to probate.

Mark said that Frank did have the mental ability to make a will in 2012. He said that he talked to Frank about his wishes and that Frank understood what he was doing. He also said that the will was signed by Frank and two witnesses who said that Frank was of sound mind. He asked the court to admit the 2012 will to probate. Probate is the process of proving that a will is valid and following its instructions. Who had the burden of proof would be important in deciding this case.

Trial Court Decision

The trial court had to decide who was right. The court looked at the evidence that both sides presented. Mark had the 2012 will, the affidavit of the lawyer who drafted the will, and a deed that showed that Frank sold some property in 2012. Cindy had her own affidavit and some parts of the lawyer’s deposition. A deposition is when someone answers questions under oath before the trial.

The trial court ruled that Mark was right. The court said that the 2012 will was valid and that Frank had the mental ability to make it. The court said that Cindy’s evidence was not enough to show that Frank was not capable of making a will. The court admitted the 2012 will to probate and dismissed Cindy’s claim.

The Appeal – Burden of Proof

Cindy was not happy with the court’s decision. She appealed to a higher court. She said that the lower court made a mistake. She said that she did have enough evidence to show that Frank did not have the mental ability to make a will in 2012. She said that the court should have let a jury decide the case.

The higher court agreed with Cindy. The higher court said that Cindy’s evidence did show that there was a question of fact about Frank’s mental ability. A question of fact is something that is not clear, and that needs to be decided by a jury. The higher court said that Cindy’s evidence showed that Frank’s physical and mental health had been declining since his stroke in 2006 and that he had Alzheimer’s disease, memory problems, and confusion. The higher court said that this evidence could be used to show that Frank did not have the mental ability to make a will in 2012. The higher court said that the lower court should not have decided the case by itself. The higher court said that the case should go to a jury trial. A jury trial is when a group of people listen to the evidence and decide who is right.

The higher court reversed the lower court’s decision and sent the case back for a jury trial. The case is not over yet. Cindy and Mark will have to present their evidence to a jury and let them decide who gets what after Frank died.

Burden of Proof

The higher court based its opinion on who had the burden of proof. The proponent, Mark, had the burden of proof if the will was contested before it was admitted to probate. Cindy would have the burden of proof if the will was contested after the will was admitted to probate. Because the will was contested before it was admitted to probate, Mark had the burden of proof. Since Cindy put on some evidence of mental incapacity, the trial court was wrong to grant a summary judgment without a jury trial.

Lesson to be learned

A person thinking about contesting a will needs to act quickly. Cindy contested the will early, before it was admitted to probate, and therefore, Mark had the burden. If Cindy had waited until the will was admitted to probate, she would have the burden of proof to show lack of mental capacity. Her evidence may not have met the burden of proof standard.

Void Versus Voidable Marriages

Void Versus Voidable Marriages

Void versus Voidable

In a recent Texas case, Allebach v. Gollub, 14-22-00272-CV, the issue of void versus voidable marriages came up. There is a difference in the way the courts treat void marriages as opposed to voidable marriages. A void marriage is just that, void. A voidable marriage is one that can be declared void but someone must take some action to get it voided.

A man remarried after his wife died. When the man died, the new wife filed a new will for probate that left most of his estate to her. The Man’s children from the first marriage contested the will on the basis that the man lacked the testamentary capacity to make a new will. They also alleged that the marriage to the new wife was void. It was void, according to them, because the new wife was the daughter of their father’s biological sister – she was his niece. The new wife said the children were too late to contest the marriage because they didn’t complain about the new marriage until four years after the man died.

Is it too late?

There is a provision in the Texas estates code, §123.102, that says an interested party must contest a marriage within three years of the date of death of the Decedent. The subchapter is titled “Proceeding to Void Marriage Based on Mental Capacity Pending at Time of Death.”

The new wife said that this provision applied and since the children had not filed their motion to void the marriage within three years, the limitations of that provision applied and they were too late.

The court examined §123.102 and found that it applied to voidable marriages but not void marriages. The court explained that the marriage to a close relative was void and not voidable. Different rules are applied to void marriages. The court pointed out that:

And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.” See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.-Waco 1949, writ ref’d)…Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations.

When you need to contest a marriage of someone who dies, you have to know the difference between void versus voidable marriages. If the marriage is void, as it was here, it can be contested at any time by anybody. However, if you are contesting the marriage because a person lacks mental capacity, you have to contest it within three years of that person’s deat.

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

Background

Heirship proceeding are different from will contest.

This article deals with getting property that is yours based on an inheritance. This may occur where a person dies without a will. It can also occur where there is a will but the will leaves property to the decedent’s “children” or his “heirs” or something similar without identifying the children or heirs by name. It may occur when there is a will but someone has taken your inheritance without your knowledge or when you didn’t know about your inheritance. This is different from a will contest where you are trying to prove your inheritance.

Let us say an heir finds out that a relative died some years back and that they may have some inheritance rights. What can they do? Is the statute of limitations a problem?

This situation may arise because a child was unborn or was an infant when the facts occurred. It may be that the child is illegitimate or only recently learned through DNA who their relatives were. It can also arise when other heirs, not just children, discover their potential inheritance.

There is currently no statute of limitation on heirship proceedings if the decedent died after January 1, 2014. If the decedent died before that date, there may or may not be a limitation problem depending on the circumstances. This is complicated, involving heirship proceedings (trial brief), but there is a possibility that it can be done.

Don’t get this limitation period confused with the two-year limitation period for contesting a will. This article deals with heirship and not with contesting wills. And if the facts are in your favor and the case is properly handled the limitation of those dying before January 1, 2014 may be avoided. In a recent case, the decedent died in 1972. Her heirs didn’t file any proceedings until 2013 when they filed a suit to get their inheritance. The statute of limitations was not a problem because of the facts and how the case was handled.

Contesting a Will After it Has Been Admitted to Probate

Contesting a Will After it Has Been Admitted to Probate

Time Limits

The time limits, or what lawyers call the statute of limitations for contesting a will, are determined by reference to the date the will was admitted to probate. Click on “admitted” to learn what that means. If a will is contested before it is admitted to probate, the proponent of the will has the burden of proof. If the will is contested after the will is admitted to probate, the contestant has the burden of proof. This difference can be important. A will can be contested within two years from the date it was admitted to probate, but there is a benefit to contesting a will before it is admitted to probate, as discussed in the post on navigating a will contest here.

Time to File

A will can be filed for probate anytime within four years of the death of the testator.  The date of death is not the date that the statute of limitations starts to run. It doesn’t start to run when the will is first filed for probate. The statute of limitations doesn’t start until the will is admitted to probate. A person then has two years after the will has been admitted to probate to file a will contest.

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Texas Statute of Limitations or Probate Limits to Challenge a Will.

Texas Statute of Limitations or Probate Limits to Challenge a Will.

Two Years

What Are Time Limits to Contest a Texas Will

In Texas, the probate limits or the time limits for challenging a will, what the law refers to as the statute of limitations, is complicated.  It is complicated because the Texas probate time limits for contesting a will center around the date that the will is admitted to probate, not the date of death of the testator.  See the article on the probate process to become familiar with how a will is probated and to learn what “admitted to probate” means.

Contest A Texas Will Before Or After The Will Is Admitted To Probate

You can oppose a Texas will filed for probate before or after it is admitted to probate. There are benefits to challenging the will before it is admitted to probate. However, you can contest the will even after it is admitted to probate if you file the will contest before the statute of limitations or probate limits run out. You can challenge a Texas will on several grounds. I have written on the reasons for contesting a will here and here.

Contesting a Will in TexasTime Limits
You know you are an heir2 years from date will admitted to probate
Minor2 years from date of majority
FraudNo limit but you must act reasonably quickly after discovery of fraud

Two Year Rule

The basic rule in Texas is that a person has two years from the date a will is admitted to probate to contest it.  That seems simple enough, but the probate limits are not so simple.  For instance, the proponent of the Texas will has four years after the death of the testator to file the will for probate.  If the proponent files the Texas will just before the four years is up, the contestant will have two years after that to contest the will (six years after the death of the testator!)  To complicate matters even more, a person who is not at fault can file a will more than four years after the death of the testator.  “Not at fault” usually means that the person who files the Texas will for probate after four years did not know about the will during the four years after the testator’s death but found it later.  If a person knows about the will and just doesn’t file it, he is usually at fault and can’t file it after four years elapse.  As with all rules, there are exceptions.  If the person knew about the will but was told by his lawyer that he didn’t need to file it, he may not be at fault and may be able to file the will after four years.  In any event, the contestant can challenge the will within two years of the date that it was admitted to probate whenever that date is. Probate limits in Texas are complicated!

Minors

Minors have two years from the time they reach their majority to file a will contest in Texas. Probate limits in Texas are complicated! There is a 2018 case where the children were minors when their father died. The Administrator of the estate, took all of the money and didn’t tell anyone. When each child turned 18, the Administrator gave them a check for around $25,000. The estate was worth over $250,000. The children had all been raised in foster care and were unaware of their rights. More than four years later, the children finally hired an attorney and sued the Administrator. The Administrator said he had destroyed all the records and didn’t remember what was in the estate. The Administrator asked the court to dismiss the claim because of the statute of limitations. The court did dismiss the claims. The dismissal was upheld by the court of appeals. So remember, time matters! 571/324.

Earlier Will

If a person finds a will dated earlier than the will that is filed for probate and thinks that the earlier will is the true last will of the testator, he has two years from the date that the later will was admitted to probate to file the earlier will for probate.  This operates as a contest of the latter will.  If a person finds a later will than the one admitted to probate, he has four years after the death of the testator to file the will for probate.  Filing a later will executed after the earlier will that has been admitted to probate may not be considered a “contest” and may not be governed by the Texas two-year statute of limitation for will contest.  The latter will can be filed within four years of the testator’s death or later if the person filing the will is not at fault. Probate limits in Texas are complicated! (Compare 322 S.W.3d 361 with 577 S.W.2d 748.)

As stated above, the statute of limitations is complicated. If you are concerned about the time, you should contact an attorney as soon as possible.

Burden of Proof

If a will is opposed before it is admitted to probate in Texas, the proponent of the will must prove that it is a good will, executed with the formalities required by law, at a time when the testator was competent and that it has never been revoked.  After the will has been admitted to probate in Texas, the contestant has the burden to show that the will is not good, that it was not executed with the formalities required by law, that the testator was not competent or that the will has been revoked.

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Can you probate a will after four years?

Can you probate a will after four years?

Can you probate a will after four years?

A will has to be filed for probate within four years of the testator’s death. After four years, a will can be filed as a muniment of title but only if the person filing the will is not “in default.” When a late-filed will is opposed, the issue is usually concerned with whether or not the person filing the will late was in default.

In a case on this issue decided in 2011, the testator had children by a prior marriage. His wife had children from a previous marriage. He executed a will leaving everything to his wife if she survived him. The testator died in 2002. His wife probated no will. Six years later, she died. While going through her papers, her children found the will. Although it was more than four years after the testator died, the wife’s children filed the will for probate. A daughter from the testator’s first marriage contested the probate, contending that the wife’s children were in default for not filing it within four years. (If the testator died intestate, his children from the prior marriage would inherit his property, not the wife.)

The Court sided with the wife’s children. It ruled that her children were not in default just because the wife was in default for not filing the will within four years. They testified that they were not aware of the will until after their mother had died. The Court said that if they didn’t know about the will and were not negligent in finding it, they were not in default. 343 S.W.3d 899.

In a 2013 case, the wife didn’t file the will within four years. An attorney told her that she didn’t need to file it; she could just file an affidavit of heirship. The wife did not know that such an affidavit would not pass the husband’s separate property to the wife. A dispute arose between the wife and a son. The son claimed that the separate property belonged to the children because the wife did not probate the will within four years. He claimed that it was now too late to probate the will. The issue turned on whether the wife was “in default” for not filing the will within four years. The court ruled in favor of the wife. There are several cases where the courts have found that evidence that a proponent relied on counsel’s advice was sufficient to support a finding that the proponent was not in default or raise a material fact question of whether the proponent was not in default.  No. 11-11-00131-CV.

While the Texas Estates Code requires that a will has to be filed within four years of the testator’s death, a will can still be filed after that time if the person filing the will was not “in default” in not filing within four years. Texas courts are pretty liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon showing an excuse by the proponent for failure to offer the will earlier.

Update: in 2019, the Texas Supreme Court settled the issue of who is “in default.” The test now applies only to the applicant who filed the will for probate. If the applicant is not “in default,” the will can be admitted to probate. It doesn’t matter whether or not the applicant’s predecessors were “in default. ” You can read more about that case here. 17-0901.

Update: On April 29, 2022, the Austin court denied probate to a will filed more than four years after the testator’s death. 03-20-00449-CV. But, on May 6, 2022, the same court upheld a will being admitted more than four years after death. 03-21-00081-CV. In the last case where the will was admitted, the widow testified that she went to a lawyer who told her she did not need to probate the will and, as soon as she learned about the need to probate it, immediately took steps to get it probated. The difference between the two cases shows what evidence is necessary to establish a lack of default when a will is probated more than four years after death.

Update: In 2022, the El Paso court upheld the trial court’s finding that the applicant was in default. No findings of fact and conclusions of law were requested so the appeals court had to assume that the evidence supported the trial court’s ruling. It distinguished a prior similar case where the applicant was held not to be in default by noting that the applicant never had an interest in the property, was familiar with land transactions because he had bought and sold some property before, and he spoke English. It is also worth noting that the court mentioned that the applicant, a male, was the “partner” of the decedent, a male. The court even cited the Obergefell ruling. Did that influence the ruling?

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