Questions regarding the basics of contesting a will or defending a will contest are common from potential clients. Of course, every case is different. The most important guidance I can provide is to consult with an experienced probate litigator very, very early in the process. I can not count the number of times I’ve been asked to consider handling a will contest after the potential client has spent months or more with a lawyer who is a “family friend” or was seemingly picked at random. That has often put the client already at a tremendous disadvantage before I am ever contacted. I am reluctant to even get involved in those situations. Properly evaluating estate disputes, particularly will contests, involves much more than simply knowing the procedures and substantive laws. I find that lawyers who do not handle these cases are typically not even familiar with those basics.
While you should always consult an experienced probate litigation lawyer, there are certain basic concepts that apply generally to will contests:
- The assets at issue. Common probate assets in Texas include real property and mineral interests. Because of the increased drilling activity for oil and gas, I am seeing an increasing number of disputed estates with significant mineral interests. Shale drilling activity in the Permian Basin, Eagleford, and Haynesville plays has increased dramatically. However, if the estate assets are minimal, it probably does not make sense to fight a will contest. I often have potential clients claim an estate is worth “millions.” But it turns out almost all of the deceased’s assets were in a brokerage account and/or a life insurance payout. In that circumstance, there may be little to gain from a will contest. Instead, there may a beneficiary dispute to pursue. In either situation, it is important to consult an attorney as soon as possible.
- Standing. Only persons who have standing can bring a will contest. In basic terms, that means a person who will benefit financially if the challenged will is overturned. That is usually someone who would benefit more from the prior will or an heir who would have more to gain by intestacy.
- The time period to contest a will. Under Texas law, a will may be contested for up to two years after it is admitted to probate. But the time period may be shorted in some circumstances. I have represented clients who have contested wills before and after they have been admitted to probate. The only advantage to contesting a will after it is admitted to probate is it allows more time to investigate the underlying facts and set out more detail in the contest petition. But it is generally better to contest a will before it is admitted to probate. The burden of proof is different and a contestant has additional leverage if the contest is made before an executor is appointed. If the will contest is filed before the prove up hearing, such hearing will be cancelled and the matter placed on the contested docket. It is important not to wait long before consulting a lawyer. The will may be offered for probate within days after the testator dies. Typically, the hearing will be set 2-3 weeks after the application. The intervening time period is crucial for setting up a powerful contest.
- The method of contest. A will is contested by a petition that sets out the legal grounds for the contest along with facts in support. Common legal grounds include lack of testamentary capacity, undue influence, fraud, or technical defects in the will or its execution. In evaluating the grounds for a contest, it is important for the lawyer to talk with potential witnesses as early as possible. That includes friends, family, coworkers, caregivers, etc. The same applies to a life insurance beneficiary dispute.
- Discovery of evidence. After the contest is filed, the parties engage in what lawyers call discovery. This involves written discovery such as interrogatories and requests for production. It also involves obtaining medical records and taking depositions of the parties, and often fact and expert witnesses. When mental capacity is in dispute, the parties often hire medical expert witnesses to review medical records and provide opinions regarding the testator’s capacity. However, medical experts are very expensive and are not used in every case. Discovery allows the parties and their lawyers to evaluate the strengths and weaknesses of their positions before trial and often before mediation.
- Mediation. Almost every will contest is mediated before trial. Some judges require mediation, while most others “strongly suggest” it. Texas law favors resolution of estate disputes through family settlement agreements. Most will contests are resolved by settlement, because of the expense and uncertainty of trial. In some cases, the estate ends up paying for both sides’ lawyers. I have had will contests settle before any discovery. That is more likely in smaller estates, where the proponent of the challenged will wants to avoid the expense of hiring a probate litigator to fight the contest. In many cases, the parties do not mediate until after at least some discovery.
- Trial. If the judge decides there is some evidence to support a contest, the case will go to trial. If at least one of the parties requests a jury trial, that jury will decide disputed issues of fact, such as testamentary capacity or undue influence.
- Appeal. The losing party can appeal the trial court’s decision. I often post summaries of Texas court of appeal decisions in will contest cases. Generally, courts of appeal will uphold a jury’s determination regarding capacity. I do see that a jury’s finding of undue influence will be subject to particular scrutiny. Either way, the party who wins at trial has the upper hand.
This is a very general roadmap, not specific legal advice. Saying that “every case is different” may sound like a trite cliché. But it is true.
I find that a successful will contest or defense involves a substantial amount of team work between the lawyer and client. In a will contest defense, that also includes cooperation with the attorney who prepared the will. Such attorney will typically be a fact witness and cannot represent the will proponent in the will contest suit.