Texas Estates Code Section 256.204 contains the filing deadline or “statute of limitations” for a will contest lawsuit. It states that “after a will is admitted to probate, an interested person may commence a suit to contest the validity thereof not later than the second anniversary of the date the will was admitted to probate.”
However, there are some exceptions to this rule. For instance, if you want to file a lawsuit to contest a will for forgery or other fraud, you have two years from the date the forgery or fraud was discovered, regardless of when the will was admitted to probate.
Can a Will Be Contested After Probate Has Been Granted?
Yes, a will can generally be contested up to two years after it has been admitted to probate.
There is also a statute of limitations for when a will must be submitted for probate. Texas Estates Code Section 256.003 says that a will must be submitted within four years of the testator’s death. However, if the applicant for probate can prove that they were not “in default” in failing to initiate probate on time, the will can still be probated.
A recent Texas Supreme Court case, Ferreira v. Butler, shed additional light on the meaning of this exception. In this case, a husband and his first wife divorced, and he then married a second wife. The second wife died before the husband, leaving everything to him, but he never submitted the will to probate.
Nine years later, the husband died, with his will leaving the majority of his estate to the first wife. As executor of the husband’s estate, the first wife attempted to probate the second wife’s will.
Over the objection of the second wife’s descendants, the Texas Supreme Court concluded that the first wife was permitted to probate the second wife’s will as a beneficiary of the husband’s estate. The court also found that because she was not personally responsible for the late submission of the will to probate, the four-year statute of limitations did not apply.
What Are the Bases For Contesting a Will?
You cannot contest a will just because you don’t like its terms or think it is unfair. Instead, you must have a legal basis to challenge the will’s validity. Here are some of the most common grounds for contesting a will:
Failure To Meet Legal Requirements
For a will to be legally effective, its creator must follow certain legal formalities when making it. For instance, the person creating a will typically must sign it in front of two credible witnesses, who must also sign the document. However, there is an exception to these witness requirements for “holographic” wills written entirely in the creator’s handwriting.
A will may also be invalid if its creator was not of legal age. In Texas, you must be at least 18 years old, have been lawfully married, or be a member of the U.S. armed forces to create a will.
Lack of Testamentary Capacity
You can also contest a will because its maker did not have the “testamentary capacity” necessary to make a will. This means that the will-maker did not have sufficient mental awareness to understand:
- The fact that they are making a will and the impact it will have
- The nature and extent of the assets they own
- Who their natural heirs are and who will inherit under the will
While this is one of the lowest mental standards that exist in law, people with serious mental illness or severe dementia or under the influence of certain medications may lack the necessary understanding to make a valid will.
Undue Influence or Fraud
Another recognized basis for contesting a will is undue influence or fraud. Undue influence occurs when a third party wrongfully influences someone through extreme pressure, physical force, isolation, or threats to change or create a will or designate them as a beneficiary or executor when they otherwise would not have done so. Wills procured through fraud or resulting from forgery can also be contested.
What Happens When a Will Is Contested?
A will contest is a type of lawsuit that challenges the validity of a will that has been admitted to probate.
Texas law allows any interested party to file a will contest. When a will is contested, both the proponent of the will and the person challenging the will are allowed to submit evidence as to the will’s validity or lack thereof. This can include calling witnesses, presenting documents, and, in some situations, a trial by jury.
Successfully contesting a will can be a challenging and expensive endeavor that requires specialized knowledge of the estate litigation process. If you are considering contesting a will, make sure to consult with a reputable probate litigation attorney before taking any action. An experienced lawyer can walk you through the process and ensure the strongest arguments for challenging the will’s validity are presented.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.