By the Estate Planning Attorneys at Garg & Associates, PC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress, Huntsville, Westchase, Southwest, Sugar Land, West Oaks, Alief, Memorial, River Oaks, Stafford, Katy, and Missouri City.

WILL CONTESTS

A Will is a very important legal instrument that directs the distribution of your assets at your death and provides for the management of your estate. It is not only vital that you create a Will during your lifetime, but also of the utmost importance to work with a qualified Estate Planning attorney in doing so. When a Will is not carefully and thoroughly drafted by an experienced professional, much room is left for errors, ambiguity, and otherwise unclear evidence of the testator’s intent and capacity. The greater the chance that erroneous or ambiguous language will be used in a testator’s Will, the more likely it is that the Will will be challenged in probate.

A testator’s heirs might have reason to contest a Will that has been offered for probate. This proceeding is typically referred to as a “Will Contest.” When a Will’s language is unclear, erroneous or confusing, or when the heirs believe the Will was created under circumstances of fraud or undue influence, the testator’s heirs might assert their claim in the estate by challenging the Will that was submitted for probate.

As suggested, the most common motivations for initiating a Will Contest include ambiguity, fraud or undue influence, as well as forgery, lack of mental capacity, and the exclusion of heirs as beneficiaries. Any “interested” person may bring a Will Contest in the probate court to which the Will was offered in order to assert their reasons that the Will, or a part thereof, should be disregarded.

An “interested” person is defined as one who is an heir, devisee, spouse, child, creditor, or anyone having a property right in or claim against the estate. If a Will is successfully contested, the court may throw it out and admit an earlier, validly-executed Will created by the testator. If no earlier Will exists, the estate will be distributed to the testator’s relatives pursuant to the governing laws of intestate succession. If only a certain clause or clauses of the Will are successfully contested, only those provisions will be disregarded by the court. The remainder of the document will be validly admitted to probate and govern the distribution of the testator’s estate.

Texas law provides that an interested person may file suit to contest a testator’s Will within two years of that Will being admitted to probate. If the suit is brought on the basis of forgery or other fraud, an interested person will have two years after the date that the forgery or fraud is discovered to bring the Will Contest. If the interested person contesting the Will is a minor or otherwise incapacitated person, then the two-year statute begins to run once the disability is lifted (for example, two years after the minor reaches the age of 18).

A Will Contests is essentially a lawsuit, and like many lawsuits, can be lengthy, burdensome and costly. As mentioned, one of the best ways to avoid the possibility of your heirs bringing litigation over your estate is to have your Will drafted in a very precise, clear and thorough manner by a qualified Estate Planning attorney. An experienced attorney will be very familiar with common pitfalls found in Will language, and will provide for all contingencies in creating your distribution scheme. Many Wills will also contain an “in terrorem” clause, also called a “no contest” clause, indicating that any person who contests the Will, whether or not they are successful, shall take nothing from the estate.

If you or your loved ones are faced with initiating or defending a Will Contest, contact the qualified Wills, Trusts & Estate Planning attorneys at Smith & Garg. We are here to guide you through the process and ensure that regardless of what side of the suit you are on, the law is followed and your rights are upheld.

Call Garg and Associates today at 281.475.4640 or complete our Contact Form and let us assist you with your wills and trusts.