It’s difficult enough to navigate a loved one’s death when their will is straightforward, in order, and not in question. It’s especially difficult to navigate when something about the will seems incongruous with what the deceased may have expressed in the past. Such incongruity leads some individuals to contest the will.
When to see a probate attorney about contesting a will in Texas
While there may be any number of reasons someone may choose to contest a will, these three scenarios are the most common:
- The will was drawn up toward the end of a person’s life. That person had been living with a beneficiary and the new will (especially) benefits the beneficiary.
- Family members discover the estate has been “drained,” meaning somebody (often a related caregiver) used or moved assets before the individual died.
- Clients will visit a probate attorney or family lawyer exclaiming, “I didn’t know anything about a new will.” In these instances, suspicions arise around the timing and motivation of the new will.
Reasons to contest a will
In these cases, the first thing a probate lawyer should do is check to ensure the formalities of the will have been executed properly. Once that has been established, the goal is to determine if either of the following two things happened:
- The deceased was under undue influence when the will was drafted.
- The mental capacity of the deceased at the time of the will was questionable. (In other words, they could have been easily swayed.)
To show whether or not the deceased was under undue influence, Lovelace Law will collect information about who had access to finances, who lived with the deceased when the will was drafted, who drove them to/from appointments, etc. Essentially, we’re trying to decipher who was exerting control in their lives when the will was drafted and if that person is the primary beneficiary in the new will.
In order to show that the mental capacity of the deceased was such that they could have been easily swayed, either a doctor or a medical professional who has seen the medical records of the deceased will need to testify as to the capacity of the deceased. An alternate (and more difficult) method is to have someone who interacted with the deceased on a routine basis testify. This could be nursing home staff or some other version of skilled care.
In both situations, a judge will have to decide if there is enough evidence to establish that the deceased may have been swayed by a beneficiary.
Why it’s important to act quickly to contest a will
The basic process of contesting a will looks something like this:
- An individual dies and a death certificate is issued.
- The deceased’s will is probated.
- Family members receive a notice of probation.
If, upon receiving the notice, a family member wishes to contest the will, they must file a challenge quickly before the executor has the opportunity to transfer property from the estate. You don’t have to file the challenge on your own. The probate attorneys at Lovelace Law will be with you every step of the way. But you need to call now so we can file the challenge quickly.