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When can a will be challenged?

Probate is the legal process during which a deceased person's estate is distributed according to his or her last will and testament.

If the will has been drafted properly and there are no concerns over what should happen with the estate, then probate process goes smoothly. However, this isn't always the case.

To say that probate is contested means that the will is being legally challenged. It is also referred to as probate litigation or a will contest.

Reasons a will can be challenged

Generally speaking, courts like to stick to what is written in the will, if possible. That's because the testator (the person who wrote the will) is no longer around to say what her or she wants, so the will often provides the best direction.

However, there are reasons that a will can be challenged in court by anyone who may have something to gain, including:

The testator lacked capacity.

In order to execute a will, a person must be over the age of 18 and of sound mind. In other words, the person must understand what he or she is doing by creating the will.

In some cases, wills are successfully challenged because a testator was suffering from an illness like dementia, was intoxicated or otherwise lacked mental capacity at the time a will was created.

Undue influence, fraud or forgery took place.

Undue influence means that a testator was taken advantage of at the time the will was created by a manipulator who stood to gain from the will.

An example of this would be a person who was in a predatory relationship with a vulnerable adult and convinced him or her to draft a will in a certain way.

This also includes situations in which the testator's signature was forged, or facts were misrepresented in order to trick the testator.

The will formalities were not met.

In Texas, the formalities of a valid will include:

  • For an attested will to be valid it must be in writing and signed by the testator (or another person at the testator's instruction) in front of two witnessed credible witnesses.
  • For a holographic will to be valid it must be written completely in the testator's own handwriting and signed by the testator.

What happens if a will is successfully challenged?

The will can be entirely voided, or it can be voided in part.

If the entire will is voided, then the property will be distributed as if no will had been executed, according to the state's intestate laws. If parts of a newer will are thrown out, previsions of an older will can be used to fill in the voided parts.

In order for a will to be successfully challenged, an experienced probate attorney will be needed. The executor of the estate will also need assistance from a skilled lawyer if a will is challenged.

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