I often have people tell me that they cared for an elderly family member in their last days, often even quit their job, to stay with that person 24/7 and in exchange for their help, the relative promised that they would inherit their house or all of their estate. Then once the person died, it is discovered that they had a Will that left everything to someone else, and that just was not what the relative said they wanted, or it just isn’t fair.  Maybe one of the children was the one that always took care of getting their parent to the doctor, mowing their grass, and the other child never called or visited, but the other child got most or all of the estate. That isn’t fair. Can you contest a Will that is terribly unfair or does the opposite of what the deceased said they were going to do?

Unfortunately, NO. The law on Wills is very strict.

You see, the law presumes that once you die, you only own property if the government says you own property. In other words, the government decides what happens to your money after you die, and the privilege of making a Will is a privilege granted by the government. If you don’t follow the law exactly, then your property defaults to whatever the government has put in the statute, regardless of what you want or intend.

And if you do make a legal Will, it is going to be honored regardless of the situation. The only way to set that will aside is to prove that it didn’t meet the legal requirements, and then the government default plan takes over. Either way, fairness has nothing to do with it.

What are the legal requirements for a Will in Texas?

  1. Will must be either entirely in the maker’s own handwriting, with nothing else printed on or typed on the page, or it must have two witnesses. If it is typed and has no witness signatures, it is no good.


  1. Whether it is typed or handwritten, the Will must be signed by the maker. If it is a forgery, obviously it is no good.


  1. The maker of the Will must be at least 18 years old or in the military or married or be legally emancipated. The witnesses must be at least 14 years old.


  1. If the witnesses don’t sign in the right order or in the presence of the maker AND each other, it is no good.


  1. The person making the Will has to understand what they are doing at that moment that they sign the Will and not be suffering from some insane delusion or be unaware of what they are signing. They have to have a general idea of the nature of their property, who their natural heirs are, and understand what a Will does and what theirs says.


  1. The will must be signed voluntarily, and not with what we call duress or undue influence, which is someone making that person feel that they have no choice or that they must do what they are told as if their own opinion doesn’t count.


  1. The person making the Will has to use the proper language in their Will to show that they are actually giving the property, not just expressing a wish.

Every single one of these requirements must be met… not just most of them.

So, you see, fairness doesn’t matter. The relationship of the parties doesn’t matter. You don’t have to leave anything to your spouse or children if you don’t want to. You don’t have to leave anything to any family member if you don’t want to.

What the maker said verbally about their intentions doesn’t matter.  The fact that they never would have intended that doesn’t matter unless you can show some fraud, insane delusion, duress or undue influence, and that it occurred at the time the Will was signed.

Really, you have to show some medical proof about their mental state unless the Will is missing a signature or something else that is obvious on the face of the document such as a forgery. You need psychiatry records to show insane delusion or medical records that show Alzheimer’s or dementia, and even that may not be enough.  You need witnesses to the maker’s mental state at the time of the Will signing, NOT witnesses about what the maker said they wanted, but witnesses to whether the maker had the necessary legally-required mental state to make a Will. You see it is not so much what they said, but what they actually did that matters.

If the Will on its surface appears to be in the proper form, then the burden of proof is on the person contesting the Will to show that the requirements have not been met.  That doesn’t mean that you can substitute what you think it should say, though. It just means that if the Will is no good, we go to the alternative which is the government plan set out in the statute.

One more thing, will contests are expensive. They slow down the probate process considerable and take a long time to resolve.  Often a Will contains a clause that says if anyone contests the Will, then they get nothing.

So if you are worried that your will might be contested, you may want to have the Will ceremony videotaped or have extra witnesses who know you well.  But the good news is that Will contests are pretty rare in relation to how many Wills go through probate.

And if you were the one who was promised something by the maker of a Will, if the maker really owes you something, you better get it put in writing, signed by the maker and then you may be able to collect as a creditor of the estate, or else at least make sure that you actually see the Will before the maker dies.

For more information, see our video on this topic: https://youtu.be/ka2w5vRKDFg

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