Much of probate litigation involves will or trust disputes. We are committed to helping you through any disputes that may have arisen during the course of the administration of your loved one’s will or trust. The details of these disputes can become complicated, so we have compiled here a short section to answer common client questions. For the answers to more frequently asked questions, see our FAQs page here. (link)

Will and Trust Contests

What grounds are there for contesting a will, trust or deed?

Wills, trusts and deeds can be invalidated if the correct formalities were not followed in executing them, if there is a later dated document that replaces the document sought to be used, if the maker of the document lacked legal and/or mental capacity to execute it, or if the maker of the document was unduly influenced to make it.

What is undue influence?

To invalidate a will because of undue influence, it must be shown that the influence: 1) existed and was exerted; 2) effectively operated to subvert or overpower the mind of the person who made the will; and 3) caused the execution of a will that the maker of the will would not have made but for the influence. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963).

Essentially, undue influence is a form of fraud, and involves the wrongful use of influence, such as through force, intimidation, duress, or deception, to cause the execution of a will which is contrary to the maker’s desire for the distribution of his or her property after death. Id.

Not every influence is undue influence; courts look to whether the free agency of the maker of the will was destroyed and whether the will that resulted expresses the will of the one exerting the influence. Id.

Who has the burden to show undue influence?

The burden of proving undue influence is on the party challenging the validity of the will. See Rothermel, 369 S.W.2d at 922 What is the mental capacity needed to make a will?

The legal and mental capacity to make a will or other estate planning document and the capacity to execute a contract are similar, but not exactly the same.   The mental ability to execute a will has been defined as “sufficient mental ability, at the time of the execution of the will, to understand the business in which the person is engaged, the effect of his or her act in making the will, and the general nature and extent of his or her property.” Hoffman v. Texas Commerce Bank Nat’l Ass’n, 846 S.W.2d 336, 340 (Tex.App.—Houston [14th Dist.] 1992, writ denied) (citing Lowery v. Saunders, 666 S.W.2d 226, 232 (Tex.App.—San Antonio 1984, writ ref’d n.r.e.)).

The person making the will must also know their next of kin and the “natural objects of their bounty,” and they must have “sufficient memory to assimilate the elements of the business to be transacted, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them.” Jones v. LaFargue, 758 S.W.2d 320, 325 (Tex.App.—Houston [14th Dist.] 1988, writ denied) (citing Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890) and Lowery, 666 S.W.2d at 232); see also Lindley v. Lindley, 384 S.W.2d 676, 683 n. 1 (Tex.1964) (setting out the elements of testamentary capacity).

Who can contest a will?

Any “interested” person has standing to contest a will, which usually is a person who would either take under the will if the will was upheld or a person who would take by statute or by another will if the will was found to be invalid.  Probate Code §§ 10 and 93.

When can a will be contested?

Any time before a will has been probated, or within two years of when the will was admitted to probate.  Probate Code §§ 10 and 93.

When is the best time to contest a will?

Strategically, the best time to contest a will is before the will is admitted to probate.  This is because the burden of proof to establish the validity of the will is on the party admitting the will to probate, and the burden of proof to establish the invalidity of the will shifts to the party contesting the will once it is admitted to probate.  Thus, those who wait to contest a will until after the will has been admitted to probate must shoulder a burden of proof that they would not have had if they had acted sooner.  Also, contesting the will before it is admitted to probate can slow down or stop the administration of the estate under the allegedly invalid will.

Attorney’s fees in will contests:  recovered from the estate?

Yes, assuming that the contest was brought or defended in “good faith” and with “just cause.”  Probate Code § 243

What is a “no contest” or “forfeiture” clause?  Are they enforceable?

These clauses typically provide that any persons who contest or challenge the will are to forfeit what they otherwise would have received under the will.  These clauses can be enforceable and should be given consideration if the person contemplating a will contest is subject to such a clause.  However, the clauses are strictly construed to avoid forfeiture if possible.  Also, arguments can be made that the forfeiture clause should not apply if the will challenge is being made with probable cause of success and in good faith.

Who receives notice of a will being probated or challenged?

All interested persons do not necessarily receive actual notice that actions potentially impacting them are taking place in the probate court.  The court will post a notice in a public place in the courthouse, but those are largely ineffective in making people aware of estates being probated in which they may have an interest.

If you are a beneficiary in a will admitted to probate, the executor of the estate must give you written notice of that fact within 60 days of the will being admitted to probate.  Probate Code § 128A.  If you are otherwise a beneficiary of a will that is not being admitted to probate or if you are a person who would inherit from the deceased by statute in the absence of the will, no notice is necessary.

Do all interested persons have to be joined as parties in a will contest?

The Probate Code does not require joinder of all interested persons in a will contest. See Jones v. LaFargue, 758 S.W.2d 320, 323 (Tex.App.-Houston [14th Dist.] 1988, writ denied). Nor does it generally require service of citation, or even notice. The Probate Code states that no person need be joined as a party or given notice of proceedings under the Probate Code unless the Probate Code expressly so provides.  Probate Code § 33(a).

Texas is one of a handful of states in this country with a will-contest statute that does not require notice to interested parties. See Petty v. Call, 599 S.W.2d 791, 793–94 (Tenn.1980) (noting that Tennessee was one of seven states at that time whose will-contest statute did not require that will contestants join or notify interested parties).

Can children be disinherited in Texas?

There is no forced inheritance, and makers of wills in Texas can disinherit their own children or anyone else whom they choose.  Probate Code § 58 (b).  However, if the person making the will excludes the “natural objects of his bounty,” which usually includes the spouse, descendants and parents of the person making the will, it can be evidence that would support a will challenge based on undue influence or lack of testamentary capacity.

Executor and Trustee Challenges

Challenges can be made to who the executor is and to whether the executor is properly discharging his or her duties.

Can executors and trustees be removed?  On what grounds?

Executors and trustees owe heightened legal duties called fiduciary duties to the beneficiaries of the will and of the trust.  These duties include an absolute duty of loyalty, a duty to fully disclose and account, and usually a duty to avoid self dealing.  The executor and the trustee owe the duty to manage the affairs of the estate or the trust with the judgment and care that persons of ordinary prudence would use in the management of their own affairs (the care “as a prudent man would take of his own property”).  Probate Code § 230

The Probate Code provides specific grounds on which an executor can be removed.  Probate Code §§ 149C, 222.

Are executors and trustees required to account?

Yes.  Interested parties can demand and receive an accounting of the assets and liabilities of the estate and the trust at appropriate times.  Probate Code § 149A.

Will Interpretation

Sometimes the language in a will is subject to more than one interpretation, and litigation is necessary to determine which interpretation of the will prevails.  If the will is found to be ambiguous, the court will hear evidence to resolve the ambiguities.  If no ambiguity is present, the court will examine the will itself (the “four corners” of the will) and will determine which interpretation prevails.

Property Ownership

Issues can arise regarding the ownership of property in an estate, and whether that property passes under the will and to whom it passes.  Often these issues involve whether the property in question is community property that would pass under the deceased’s will, or whether the property is separate property of a surviving spouse that does not pass under the will.

Settled Disputes:  the Family Settlement Agreement

A family settlement agreement is commonly used to settle disputed estate issues.  The family settlement agreement is a document signed by all parties interested in the estate (heirs, those listed in a will as beneficiaries, etc.), in which all parties release any claims that they have against each other, and in which the assets and liabilities being assumed by each party are listed.

If a dispute later arises and the agreement needs to be enforced, the agreement has to be filed with the court.  However, if no dispute arises, the attorneys will sometimes retain the original agreement in their files and will not file it with the court so that the contents will remain confidential.

Procedural Issues

What county has venue for a will contest?

Wills are probated in the county of the deceased’s “domicile”, or fixed place of residence, at the time of the death.  Probate Code § 6.  If the deceased had no domicile, other permissible counties may apply.

What county has venue for trust challenges?

Challenges to trusts are generally filed in the county in which the trustee resides or in the county where the trust is being administered.  Property Code § 115.002.

What court has jurisdiction for trust challenges?

The district court has original jurisdiction in all trust proceedings.  Property Code § 115.001.

What court has jurisdiction for will challenges?

The first step in determining what court within a given county has jurisdiction for will challenges is to determine if that county has a court created by statute that has probate jurisdiction (these are usually referred to as statutory probate courts, and they generally exist only in the more populous Texas counties).  If the county in question does have a statutory probate court, the contested probate matter (including will challenges as well as other disputes) should be filed in the statutory probate court.

If the county does not have a statutory probate court, the case should be filed in the county court (commonly referred to as the constitutional county court since the Texas Constitution provides one for each county), and the contested part of the case has to be transferred to the district court if either party so requests.  In that event, the district court presides over only the contested issues, with the county court retaining jurisdiction over the remainder of the case and disposing of the entire case consistent with the district court’s rulings once the contested portion is determined.  Probate

Code § 5.

What rules of procedure apply?

Texas Rules of Civil Procedure apply to will contests only to the extent they do not differ from the procedure established by the Probate Code. See TEX.R. CIV. P. 2; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex.1983); see also Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000) (”[W]hen a rule of procedure conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute as provided by Texas Government Code section 22.004.”).

Can records be obtained by subpoena?

Yes. Records can be obtained by subpoena through depositions on written questions and otherwise through the subpoena power of the probate court as in any other court.

What state’s law applies?

For the transfer of real property, the law of the state in which the land is located controls.  For personal property, the law of the state in which the deceased was living at death controls.