There may be circumstances when the process of executing a will was not done properly. In these cases, it might be necessary to formally contest the will or to reform the will to ensure the estate is administered or distributed as the decedent intended.
In Texas, any “person interested” in an estate can contest a matter in probate court.
The term “interested” is defined in section 22.018 of the Texas Estates Code. The short version is that the term means anyone whose rights in the estate will be affected by the probate or defeat of the will. This is strictly a monetary interest in the estate. Sentimental or other relations do not count.
Some wills include no-contest clauses. What is a no-contest or forfeiture clause? It is a clause in a will that says a person’s rights in the estate are forfeited if they bring any court action, such as a suit to contest or modify a will.
If a will has a forfeiture clause and a person brings a court action, they will have to show, by a preponderance of the evidence, that just cause for bringing the action existed and that the action was brought in good faith. If they fail to show just cause and good faith, they risk total forfeiture of their rights in the estate.
Generally speaking, Texas courts rarely enforce forfeiture clauses if the challenge is successful, but this type of clause can be a problem if the will contest is unsuccessful. One should check to see if the will includes a no-contest clause before actually contesting the will. They should also consult with a probate attorney as to the legal effect of any such clause.
One has to make an affirmative statement in a court filing to contest or reform a will. This statement has to plead the grounds supporting the challenge.
Texas law recognizes the following grounds for contesting a will:
The contest must be filed in the court where the application to probate the will was filed. In most cases, this will be the court in the county where the decedent resided at the time of death.
A will contest can be filed before or after the will has been admitted to probate:
Let’s consider undue influence further as it is often the basis for will contests. . Click here to continue reading. >>>>
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