How to Prepare for a Will Contest
Estate planning can often be an emotional and complicated process, and one of the most challenging aspects of this process is making sure that your final wishes are honored after your passing.
While having a well-drafted will is essential, it’s equally important to understand that a will can be contested. This means that someone may challenge the validity of the will or claim that the terms don’t reflect your true intentions. A will contest may arise for a number of reasons, including allegations of lack of mental capacity, undue influence, or fraud.
At Russell Manning Law PLLC in Corpus Christi, Texas, I’ve seen that will contests can lead to lengthy and costly legal battles. Understanding how to prepare for a will contest is crucial to minimizing the chances of your will being successfully challenged and making sure your wishes are upheld.
I’m here to walk you through everything you need to know about preparing for a will contest, including common grounds for contesting wills, how to strengthen your estate plan, and what you can do to make your will less likely to be contested.
Common Grounds for Contesting Wills
Before discussing how to prepare for a will contest, it’s important to understand the common grounds on which wills may be contested. In Texas, as in other states, a will can be challenged in court if there is evidence of any of the following:
Lack of Testamentary Capacity
For wills to be valid in Texas, the testator (the person making the will) must be at least 18 years old and must have testamentary capacity. Testamentary capacity refers to the mental ability to understand the nature and extent of one's property, understand the relationships with the people who would typically inherit from them, and comprehend the effects of the act of making a will.
If a person lacks testamentary capacity at the time they sign their will, the will may be contested.
Undue Influence
Undue influence refers to situations where someone exerts excessive pressure or manipulation over the testator, causing them to make decisions they wouldn’t have made otherwise. If a person can prove that the testator was unduly influenced by someone to alter the terms of the will, the court may invalidate the will or parts of it.
Fraud or Duress
A will may also be contested if it’s believed that the testator was fraudulently induced to sign the will or if they were under duress when making it. For example, if someone intentionally misled the testator or used threats to coerce them into creating a will with provisions that weren’t truly reflective of their wishes, the will could be challenged.
Lack of Compliance With Formalities
Texas law requires certain formalities for wills to be considered valid. A will must be signed by the testator in the presence of at least two credible witnesses, and those witnesses must also sign the will. If these formalities aren’t followed, a will may be contested.
Revocation
A will can be contested if it’s believed that the testator revoked or changed their will, but the most recent version of the will wasn’t properly executed. If a will has been revoked but not properly replaced or amended, a contest may arise, especially if there is confusion over which will is the valid one.
Self-Proving Wills
In Texas, a self-proving will is one that includes an affidavit signed by the testator and the witnesses at the time the will is executed. This affidavit confirms that the will was signed voluntarily, with testamentary capacity, and in compliance with the law.
A self-proving will can simplify the probate process because it eliminates the need for witnesses to testify in court regarding the validity of the will.
By creating a self-proving will, you can make it more difficult for others to contest the validity of your will. The affidavit serves as a presumption of validity, making it more likely that the probate court will uphold your will if contested.
Keeping Your Will Updated and Clear
One of the most effective ways to prevent a will contest is to make sure your will is always up to date. Regularly reviewing and updating your will helps to account for any changes in your assets, family dynamics, or relationships. Failing to update your will may lead to confusion about your true intentions and provide an opening for a contest.
In addition to keeping your will up to date, it’s also important to make sure that your will is clear and specific. Ambiguous or unclear language can lead to disputes among family members and increase the chances of a contest. For example, if you leave a general bequest like “I leave my estate to my children,” this can be interpreted in many different ways.
On the other hand, being specific about who receives what and under what conditions can help avoid confusion and reduce the chances of a will contest.
Appointing an Independent Executor
An independent executor is someone you appoint to manage your estate after your death without the need for court supervision. Appointing an independent executor can help avoid unnecessary delays and expenses during the probate process, and it may also reduce the chances of a will contest.
In Texas, an independent executor is generally not required to post a bond or get court approval for their actions, which can make the process run more smoothly.
Choosing an independent executor who is trustworthy and impartial can help make sure that your wishes are respected and followed, which in turn reduces the likelihood of family members contesting the will.
Addressing Potential Conflicts Ahead of Time
If you have concerns about potential conflicts among your family members, it's important to address these issues before they escalate into a full-blown will contest. Family disputes, especially over inheritance, are often the root cause of will contests.
One way to prevent conflict is by communicating your wishes to your family members in advance. Let them know why you made certain decisions and how you want your assets to be distributed. This can help avoid misunderstandings and reduce the likelihood of someone challenging your will after your death.
If you anticipate that certain family members may be upset with the terms of your will, you might also consider writing a letter of explanation or including a provision in your will explaining your rationale for your decisions. This can help to minimize hurt feelings and potential disputes.
Properly Executing Your Will
For a will to be valid in Texas, it must comply with all formal requirements set forth by state law. These requirements include:
The will must be in writing.
The testator must be at least 18 years old and of sound mind.
The testator must sign the will, or it must be signed by someone on their behalf at their direction and in their presence.
Two witnesses must sign the will in the presence of the testator and each other.
If your will isn’t properly executed, it could be contested on the grounds of technical noncompliance with Texas law. Make sure that you’ve followed all formalities carefully and that your witnesses are credible and not beneficiaries under the will.
Keeping Your Will Safe and Accessible
After your will is executed, it’s crucial to store it in a safe place, such as a fireproof safe, a secure bank vault, or with your attorney. Your will should be easily accessible to your loved ones and your executor when the time comes. If your will can't be located or is found to be damaged or altered, it may lead to disputes and potentially result in a will contest.
Possible Challenges
While no one wants to think about the possibility of their will being contested, it’s important to prepare for the potential challenge. If you suspect that there may be individuals who could contest your will, consider taking steps to minimize the likelihood of success. This may include:
Consulting with your attorney to make your will ironclad and difficult to contest
Having conversations with potential heirs to discuss your estate plan and reduce misunderstandings
Considering a no-contest clause in your will, which may penalize anyone who contests the will without valid grounds
Will Contest Process
In the event that your will is contested, it’s important to understand the process and how it works in Texas. A will contest typically begins when an interested party (usually a family member or someone who stands to benefit from a previous will) files a lawsuit in the probate court. The court will then examine the evidence and determine whether the will is valid.
While contesting a will can be a lengthy and costly process, having a strong, legally sound will and a well-prepared estate plan can increase the likelihood that your wishes will ultimately be honored.
Contact an Experienced Estate Planning Attorney
While your will can be contested, taking proactive steps to create a valid, clear, and up-to-date will can reduce the chances of a successful challenge. At Russell Manning Law PLLC, I help you create an estate plan that explains your wishes so your estate is administered according to your desires. I serve clients in Corpus Christi, South Texas, throughout the Coastal Bend area, Kleberg County, Nueces County, Live Oak County, Jim Wells County, Aransas County, and Victoria County. Call today for more information.