Getting the affairs of a departed loved one in order typically evolves without any issues, there are times when there’s something amiss with part of a deceased’s estate plan.
A will contest is a way that heirs and beneficiaries can ask the court to step in to determine if a known will is considered valid under Texas law.
Lack of testamentary capacity
In Texas, a will dispute can occur if there’s a question about the testamentary capacity of the person who created the will, who’s known as the testator, at the time the will was executed. Testamentary capacity requires these elements:
- Sufficient mental ability to understand that they are making a will, and
- Sufficient mental ability to understand the effect of their act in making the will, and
- Sufficient mental ability to understand the general nature and extent their property, and
- Sufficient mental ability to know their next of kin and natural objects of their bounty and claims on them, and
- Sufficient memory to collect in their mind the elements of the business to be transacted and to be able to hold the elements long enough to perceive their obvious relation to each other and to form a reasonable judgment as to these elements.
It is generally accepted that less mental capacity is required to make a valid will than to make a valid contract. Some authority suggest otherwise. A few Texas courts have held that the legal standards for determining the existence of mental capacity for purposes of executing a will are substantially the same as the mental capacity for executing a contract.
Disputes may arise if it’s believed that the testator was suffering from dementia, Alzheimer’s or other mental impairments that could question their understanding and decision-making abilities. The issue of whether a person has testamentary capacity is usually a question of fact.
Facts that may support incapacity include:
- Dementia of Alzheimer’s type;
- Vascular dementia;
- Challenges with memory as evidenced by excessive reliance on third parties to provide basic information;
- Amnesic disorders;
- “Covering,” such as responding to questions with, “everyone knows that,” or glib answers;
- Repeated conversations regarding the same issues or concerns that have been previously responded to;
- Unusual reliance on another person for their basic daily needs such as food, shelter, clothing, and communication needs;
- Obsessive/compulsive behavior;
- Victim-like behaviour, such as the inability to ever perceive the contribution of one’s own actions to the current situation;
- Significant mood swings in short periods making rational decisions difficult;
- Unreasonable suspicions, such as that a family member is an enemy, stealing money, or is trying to kill without any factual or logical basis.
- Manic/depressive behaviour, such as behaving extremely jubilant for no reason at a serious time, or becoming suddenly depressed, sad and tearful;
- Obsession for revenge;
- Substance abuse disorders;
- Major depression to the degree there are changes in appetite, sleep patterns, energy, concentration, and possibly feelings of hopelessness and suicidal thoughts;
- Schizophrenia or schizophrenia affective disorders which, when not controlled, result in delusions, disorganized speech, and possibly hallucinations; and
- Psychopharmacological disorders and they are non-compliant with medications, over-medicates, or abuses both prescribed and over-the-counter medications.
Undue influence
Another frequent cause of will disputes in Texas is undue influence. This is an allegation that the testator was coerced into making or changing the will in a way that doesn’t reflect their true intentions. This coercion can come from a caregiver, family member or any other person who had a close relationship with the testator and stood to gain from the will.
Improper execution or formalities
For a will to be valid, it generally must be in writing, signed by the testator and attested by at least two credible witnesses over the age of 14 who sign the will in the testator’s presence. In some cases, another person can sign the will on behalf of the testator. This must be done at the testator’s direction and in their presence.
Fraud or forgery
Will disputes can also stem from allegations of fraud or forgery. This could involve claims that the will presented for probate isn’t the true will of the decedent, either because the testator’s signature was forged or the testator was tricked into signing a document under false pretences.
Ambiguities in the will
Ambiguities or unclear language in a will can lead to disputes among beneficiaries regarding the testator’s true intentions. Texas courts may be asked to interpret the will’s provisions, such as clarifying specific bequests, conditions or poorly drafted clauses.
A will contest is a serious undertaking that can lead to tension within a family. Discussing the matter with a legal representative and determining the possible courses of action may help individuals in this position to make a decision they feel is in their best interests.