If you don’t need to contest a will but just need to obtain your inheritance, you should review this post.

Contesting a Will is Not About Greed

As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will. See this article about abuse.

We know that this is a painful time for you, and you may be feeling guilty about your need to contest the will, but the first thing you need to know is that in most cases, disputing the legitimacy of a will is not about greed and that it is within your rights to call it into question.

When a new will is created due to this abuse that favors the abuser, often the only remedy is to file a suit contesting the will.

How Contesting a Will Works

If a person makes a will when he or she does not have the mental capacity to do so, or when they are under the control of another person, then the will can be disputed – or contested. When a will is contested, it is because the contestant doesn’t believe it is the true will of the person who created it (the testator).

In other words: if you don’t feel that this is the will your loved one wanted to write, then you may contest it.

In this article, we will give you everything you need to make an informed decision about what to do next, and what lies ahead.

We will cover:

  • What you need to do to contest a will (Procedure and how)
  • Grounds for contesting a will (Grounds)
  • Statute of Limitations for contesting a will (Time Limits)
  • What happens to the estate if the will is successfully challenged

How to Contest a Will

A general discussion of how to contest a will can be found here. Because of the time limits or statute of limitations for contesting a will and the fact that the estate may be depleted by others taking property from the estate, a will contest needs to be started as soon as possible.

 

We realize this can be a confusing, frustrating, and emotional process. Below, we have laid out the steps you need to take and how you can take them in order to make the process easier for you.

  1. You have to be an interested party.
  2. You need to hire an attorney to represent you.
  3. You have to act before the statute of limitations runs.
  4. Can I contest a will without an attorney?
  5. What happens when you contest a will?

Successful Will challenges?

If a will is successfully challenged, the court may then turn to his or her previous valid will if there is one to determine what should be done with the estate.

If there was no previous valid will, or if it has been lost, then the testator (the person whose estate the will is about) will be considered to have died intestate, or without a will.

At that point, the court will turn to laws that govern how an estate is divided when no will has been left behind.

 

Grounds for Contesting a Will

The law outlines several reasons to contest a will. Many of those reasons are listed below:

Execution and Form

The law is very strict about the form and execution of wills. A will may be set aside if it isn’t written or executed appropriately.

This usually happens because individuals create the will themselves, rather than through an attorney. There are times, though, that even an attorney does not ensure that everything is in order as far as the law is concerned.

Often, individuals will type out a will on their computer, download a form from the Internet, or copy a form from a book. If any mistakes are made during this process, the will can be set aside.

Additional information on execution and form:

Testamentary Capacity

Testamentary capacity, in essence, is the legal term to describe a person’s legal and mental ability to make, alter or revoke a will.

A person must have testamentary capacity in order for their will to be considered legally valid.

There may be a number of causes – both in legal and in psychological terms – that might diminish a person’s testamentary capacity, but the result of each is often the same: any wills they may have created while lacking testamentary capacity may be overturned.

Whatever the cause, it could mean that the will made in this condition doesn’t follow their true wishes.

Find out what to do if you believe your loved one wasn’t fully aware of their actions when they created their will.

Undue Influence

If a person is being controlled or dominated by another person so completely that they aren’t able to create their will according to their wishes, we call this undue influence.

Cases such as these might entail abuse or coercion or just a strong mind over a weak one. Keep in mind that this doesn’t always mean the abuse is physical. If a person is being coerced by emotional or verbal means, it could also be cause to contest the will.

What to do if you suspect undue influence.What to do if you suspect undue influence.

Forgery

A will can also be contested if you believe it to be a forgery – or written by anyone other than the person who was supposed to write it.

What to do if you suspect a forged will.

Sexual Assault or Sexual Abuse

A person who has been sexually assaulted or sexually abused by the decedent may be able to file a claim against the estate.

Time Limits for Will Contest

A will isn’t open to be contested forever. Contesting a will is limited to filing within a certain amount of time – what the law refers to as the statute of limitations.

You may be surprised to learn that the statute of limitations for contesting wills does not start at the time of death, but when the will is admitted to probate.

That means that if you feel a will should be contested, you must act quickly.

There are a few exceptions to this, such as when it comes to minors, or those who don’t know they are heirs.

Additional information on the statute of limitations for contesting wills:

  • Before the will is admitted to probate.
  • After the will is admitted to probate.
  • When a new will is found after another will has been admitted to probate

 Successful Will challenges?

If a will is successfully challenged, the court may then turn to his or her previous valid will if there is one to determine what should be done with the estate.

If there was no previous valid will, or if it has been lost, then the testator (the person whose estate the will is about) will be considered to have died intestate, or without a will.

At that point, the court will turn to laws that govern how an estate is divided when no will has been left behind.

Articles that may be of interest to you

When Can a Texas judge change or reform a will

When Can a Texas judge change or reform a will

A Texas will or trust can be reformed, in limited circumstances, based on a scrivener’s error (a mistake made by the attorney preparing the document as opposed to a mistake by the clients.)

Challenging a Joint Account

Challenging a Joint Account

Challenging a pay of death (POD) or joint account with right of survivorship account is difficult but cah be done. Don’t accept them at face value.

Problems filing in the wrong court

Problems filing in the wrong court

When a case or claim is filed in the wrong court, you may lose your claim without being heard. If your case is dismissed after the statute of limitations has run, you are out of luck no matter how good your claim was.

Can Nieces and Nephews Contest a Will

Can Nieces and Nephews Contest a Will

In Texas, Nieces and Nephews can contest a will. You need to be an interested party as explained in this post. Learn more about contesting a will in Texas. Learn more.

Robert Ray

Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases all across Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray is a Texas attorney who handles inheritance disputes

Why Us?

Inheritance disputes involve someone who has taken advantage of the elderly. These cases are complicated and most often, but not always, involve outsiders. We represent you knowing that these inheritance disputes are private and painful family matters. We know this is a stressful time for you. We strive to obtain the quickest and best results possible so that you can get this troubling episode behind you.

Questions?

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Lantana, Texas
In the DFW area

Phone

(214) 660-5700

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