Challenging Partial Invalidity Of A Will In Texas Law

In Texas, a will must meet certain legal requirements to be considered valid. If a will is deemed invalid, it can have serious consequences for the distribution of assets and properties. While there is no legal requirement to hire a lawyer to create a will in Texas, mistakes in execution, ambiguous language, or failure to meet legal requirements could result in an invalid will. A will can be partially invalid if it is deemed to be defective, which can result in an entirely different distribution of assets than intended.

Lack of testamentary capacity

For a will to be valid in Texas, the testator must have testamentary capacity. Testamentary capacity is the legal requirement that a testator must have the ability to understand the nature and effect of making a will and the property being disposed of at the time the will is executed. In other words, the testator must be of "'sound mind" when they execute the will.

Texas probate courts consider several factors when determining testamentary capacity, including the testator's age, mental state, medical history, and whether the testator was under the influence of drugs, alcohol, or medications at the time the will was executed. Testamentary capacity can also be inferred by the testator's behavior at or around the time they executed the will. For example, evidence that the testator could no longer drive because they could not remember how to get home could be used as evidence that the testator lacked testamentary capacity if it occurred at or around the time of the will's execution.

There are several ways to prove that someone lacked testamentary capacity when they executed their will. The most common piece of evidence is testimony from people who knew the testator around the time the will was made. These witnesses can testify as to whether they believe, based on their interactions with the testator, that the testator lacked the mental ability to understand the nature of a will and make key decisions about their property. Other types of evidence that may be used to show a lack of capacity include medical records or other documentation showing that the testator was suffering from a mental illness or cognitive decline around the time the will was made.

Evidence that a testator had the requisite testamentary capacity to execute a will may include testimony from witnesses and lawyers that the testator displayed knowledge and understanding of their property, their heirs, and the legal effect of their will. Medical records or testimony from doctors and mental health professionals may also help establish that the testator exercised adequate control over their faculties at the time of execution.

Undue influence

In the case of Rotherman v. Duncan, the Texas Courts determined that to prove undue influence in probate court, three elements must be present:

• The existence and exertion of an influence upon the testator;
• Which operated to subvert or overpower the testator's mind at the time the will was executed;
• Such that the execution would not have occurred but for the undue influence.

The burden of proof rests on the person contesting the will, who must provide factual evidence of each of these three elements. This can include gathering documentation, talking with friends and family members, and even hiring an investigator. Circumstantial evidence is often relied upon in undue influence cases, as there is rarely a single piece of evidence that is strong enough to prove the case.

It is important to note that a will contest in Texas must be filed within two years of the date the contested will was admitted to probate. Therefore, if you suspect undue influence, it is crucial to consult with a probate litigation attorney without delay.

Fraud or forgery

A will in Texas may be considered invalid if there is evidence of fraud or forgery. Texas law defines fraud as an act committed by a person who, with the intent to defraud or harm any person, causes another person, without their effective consent, to sign or execute any document affecting property or service or the pecuniary interest of any person. This includes causing a public servant, without their effective consent, to file or record any purported judgment or document that purports to memorialize an act, order, directive, or process of a purported court, judicial entity, or judicial officer that is not validly established.

Fraud in the context of a will can occur when there is undue influence or fraud involved in creating or executing the will. This could involve exerting pressure or manipulation to coerce the testator into including certain provisions in the will or to execute a will that they would not have otherwise made. If fraud is proven, the will may be deemed invalid.

Forgery, on the other hand, is a specific type of fraud-related crime. Texas law defines forgery as forging a "writing" with the intent to defraud or harm another person. "Writing" is broadly defined and includes any kind of printed or recorded information, including signatures, money, coins, tokens, credit cards, and more. If a will is forged, it is considered a more serious crime than general forgery, and convictions can result in significant fines and jail time.

It is important to note that the presence of fraud or forgery may not automatically invalidate a will in Texas. The specific circumstances and evidence presented will play a crucial role in determining the validity of the will. If you suspect fraud or forgery, it is essential to consult with a legal professional to understand your rights and options.

Mistake

A will must be in writing and cannot be verbal or a video will. The testator must sign the will in the conscious presence of two witnesses, who must also sign the will themselves. The witnesses should be at least 14 years old, impartial, and not inherit anything from the will. A self-proving affidavit can be used to verify the authenticity of a will, and it may speed up the probate process by reducing the need for witnesses to appear in court.

A will may be deemed invalid if there is evidence that the testator lacked testamentary capacity when they made their will. This refers to the testator's ability to understand what they own, who their beneficiaries are, and the effect of signing a document on those things. If the testator's mental capacity is questionable, the will may be challenged. For example, if the testator was suffering from a degenerative mental condition or a sudden onset of incapacity due to an illness or accident, the will may be contested.

It is important to note that a will does not need to be notarized in Texas, but it is highly recommended as it can allow the testator to make a self-proving will. This does not mean that the will is automatically valid but can help move it through probate court more efficiently.

Improper execution

A will in Texas is considered improperly executed if it does not meet the state's strict requirements for execution. These requirements include the testator signing the will in the conscious presence of two witnesses who are not beneficiaries of the will and are at least 14 years old. The witnesses must also sign the will themselves in the presence of the testator. While it is not mandatory, notarization is highly recommended as it allows the testator to make a self-proving will.

A self-proving affidavit can be used to verify the authenticity of a will in Texas. It confirms that the testator signed the document voluntarily and was of sound mind at the time, and that the witnesses who signed the will were present when the testator signed it and saw them sign it.

If a will is not properly executed, it may be challenged in court and ruled invalid. This can have serious consequences, as the estate will then be distributed according to the state's intestacy laws rather than the testator's wishes.

To avoid improper execution, it is advisable to work with an experienced estate planning attorney to ensure that the will is properly prepared and meets all legal requirements.

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