Will Contests: undue influence, coercion, fraud, forgery, incompetence

Will contests arise from forgery, coercion, undue influence, lack of mental capacity, lack of required formalities, and failure to address changed circumstances. Generally, a challenge to a will must be commenced within two years. If fraud or a forgery is involved the two-year period begins running from the date the fraud or forgery is discovered. And where the person who can bring the challenge was under a disability (for example, a minor) the two-year period begins to run when the disability ceases to exist. This is provided in Texas Probate Code section 93. A Will must be executed and declared to be a person’s (testator’s) will as a free and voluntary act. Thus, a will is not valid when the testator would not have signed the will but for the influences that caused the will to be signed. For example, if the testator was coerced to sign through fear or threat of harm the will is not valid. Likewise, a will is not valid when the provisions are the product of influences that deprived the testator of important information, freedom to choose and the like.

Texas case law establishes that the party challenging the will has the burden to prove (1) the existence and exertion of an influence (2) that influence subverted or overpowered the testator’s mind at the time the instrument was executed, and (3) the testator signed the instrument that would not have been executed but for that influence. Undue influence cannot be presumed to exist merely because there was clear motive and opportunity to apply such influence. Evidence must show that the influence was present and was in fact exerted with respect to the actual content and signing of the document itself.

A will is not valid when the provisions are the product of a fraud. When a testator’s perceptions are based upon another’s lies and deceptions the resulting will is not a valid document to be admitted to probate. Any time a will is the product of forces and influences that deprive the testator of the capacity to form voluntary, correct perceptions and conclusions the will should be challenged. Such documents are not the product of a testator’s free and voluntary act. Similarly, an incompetent person cannot make a will under the law. As a rule of law minors are not competent to make a will or even to make a contract that is enforceable against them. People who suffer any kind of diminished mental capacity (not of sound mind and disposing memory) may not be considered to be competent when the will was made, and trials of such will contests will necessarily involve much evidence and testimony about the person’s ability to comprehend the results of their actions.

In “mental capacity” cases it may be critically important to obtain the decedent’s medical records. Since HIPAA forbids the release of such records in the absence of a proper release (which often does not exist) Texas law provides that a person who is a party to a will contest or a proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent’s death as part of the party’s claim or defense is entitled to production of all communications or records relevant to the decedent’s condition before the decedent’s death. On receipt of a subpoena of communications or records under this section and proof of filing of the will contest or proceeding, by file-stamped copy, the appropriate physician, hospital, medical facility, custodian of records, or other person in possession of the communications or records shall release the communications or records to the party requesting the records without further authorization.

Under Texas law “Testamentary Capacity” means a person possesses sufficient mental ability at the time of execution of the will to show that the testator understood the conduct in which the testator was engaged, the effect of making the will, and the general nature and extent of their property. In addition, the testator must be capable of knowing/recognizing next of kin and the natural objects of the testator’s bounty and affection. Third, the testator must have sufficient memory to understand the parts of the thing they are doing, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to all these things. When a person’s state of mind is so diminished or limited that they don’t remember family members when a will is executed the person lacks the required testamentary capacity. For this reason, and several other reasons, medical records as well as truthful testimony of persons having first-hand knowledge of the testator’s manifest state of mind are critically important are critically important evidence that must be provided when a will is challenged.

Specified formalities are required by Texas law. A will executed without meeting those formalities is not valid. For example, if the type-written will is not executed in the presence of two witnesses who attest witnessing the execution understanding that the testator is declaring the document is their will, the will is not valid.

Posted in Will Contests

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