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.

No Forced Heirship In Texas

No Forced Heirship In Texas

Forced Heirship in Texas?

Forced heirship is a concept that provides that all of your children have a right to a portion of your estate upon your death. In other words, each of your children must get part of your estate. There are limited circumstances under which a child can be disinherited. Absent one of these circumstances, if you do not provide a child with his or her forced portion, he or she can sue to claim it. The idea comes from Roman and French Civil Law but is not part of the common law of England. All states follow the Common Law of England rather than the Civil Law of Europe except for Louisiana. Louisiana has forced heirship, the other states generally do not have it.

No Texas Forced Heirship.

Texas was part of Mexico before its independence. Mexico’s law is based on the Civil Law of Europe.  Because Mexico had forced heirship, it was part of Texas law at the time of Texas’ independence. It remained part of Texas law for only a short time. Texas repealed forced heirship in 1856. As a result, a Texas will can leave property to a child or not leave property to a child. There is no law that requires a person in Texas to leave property to a child, a spouse or anyone else. There is complete freedom to leave property to anyone regardless of their relationship to the maker of a will.

If you want to read an in depth discussion on forced heirship in Texas and Louisiana, there is an excellent discussion titled The Early Sources of Forced Heirship; Its History in Texas and Louisiana, 4  Louisiana Law Review 1941.

Pretermitted Children and Spouses.

Note that forced heirship is different from the concept of pretermitted children and spouses. Pretermitted children are those children born after a will is executed and not otherwise provided for by the decedent. The law treats these children as forgotten children and they inherit as if there was no will. Texas doesn’t recognize pretermitted spouses but some states do. The same principles apply as apply to pretermitted children. I have written about pretermitted children here and here. I have written about pretermitted spouses here and here.

Listen to this Podcast on pretermitted children:

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

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Are Arbitration Provisions of a Will Enforceable?

I have written previously that arbitration clauses in trust are enforceable against the beneficiaries. Normally, arbitration clauses are not enforceable against someone unless they agreed to be bound by arbitration. In the trust context, the Supreme Court has held that if a trust contains an arbitration clause and you receive benefits from the trust, you are agreeing to the arbitration clause. This is called direct-benefits estoppel. I said in that article that the same rule would probably apply to an arbitration clause in a will. Well, there is a case now involving an arbitration clause in a will.

In the will case, the Testator’s will contained a provision requiring arbitration of all disputes. 14-18-00003-CV. The Successor Administrator sued the Former Executor for several alleged breaches of fiduciary duty. Former Executor moved to compel arbitration. The trial court denied the motion and Former Executor appealed.

The appeals court also denied arbitration. They said that direct-benefits estoppel did not apply because the Former Executor did not receive benefits. The Former Executor claimed that the fees that the he received were benefits under the will so the arbitration clause required arbitration. The court explained that Successor Administrator’s claims are not based on allegations that Former Executor violated the terms of the will. Instead, the breach of fiduciary duty claims against Former Executor were derived from statutes and common law, irrespective of the will itself. In addition, Successor Administrator’s entitlement to fees is based on Texas Estates Code § 352.051, not the will.

So, the implication is that arbitration clauses in wills are enforceable under the right circumstances.

Note: A 2019 case denied an interlocutory appeal of an order to arbitrate. A party sued a trust company for inappropriately distributing funds. The trust company demanded arbitration which the trial court ordered. The party that did no want arbitration attempted an interlocutory appeal. The appeals court denied the appeal saying that only orders denying arbitration are subject to interlocutory appeals, not orders granting arbitration.  11-19-00017-CV.

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