The Best Time to Contest a Will
It happens more often than people think: Dad is sick and hasn’t seen his kids for years…his new wife encourages him to update his Will to reflect his new marriage status and love. Dad eventually dies and the children are less than happy to find out that their new Stepmom is the sole beneficiary of their Dad’s estate. Feeling robbed and outraged, they want to contest the new Will. Is there a time period that increases the chances of successfully disputing the validity of a Will?
The short answer is yes.
The best time to Contest a Will is before the hearing appointing the Executor of the Estate. If a Will is contested after the Application for Probate has been filed, but BEFORE the hearing appointing the Executor of the Estate, then the burden of proof is on the Applicant to prove that it’s a valid Will. This means the Applicant (person saying the Will is valid) has to prove to the court that the Will was executed in the correct manner, and disprove any allegations of fraud, undue influence, and testamentary capacity.
If the Will is contested AFTER the hearing to appoint the Executor, the burden of proof shifts to the Contestant. This means the Contestant is the one that has to prove the Will is executed incorrectly, or has to affirmatively show that there was fraud, undue influence, or lack of testamentary capacity when the Will was signed.
It can be very hard to prove undue influence, fraud, or lack of testamentary capacity in a Will contest because the person who can answer all the questions …the Testator…is dead.
The Testator may have lacked capacity, but proving it to the Court after that person has died can be difficult. Medical records are often used, but a person’s mental capacity is often not recorded in medical charts in the last few days of an illness. If the only person in the room at the time of signing was the Applicant and two disinterested witnesses that only saw the signing, it can be hard to prove Fraud.
By contesting the Will before the hearing to appoint the Executor, it shifts the work of proving the Will is valid to the Applicant, making the Applicant do most of the work and increasing the chances of successfully contesting the Will.
While it’s not too late to contest a Will after the hearing to appoint the Executor, it definitely makes it more work and generally more expensive to contest a Will.
Be proactive. If you suspect the Will is invalid, act quickly.
Blaise Regan is a Partner at Regan & Frisbie, PLLC, a law firm focusing on Wills, Trusts, Probate, Contracts, Business Formations (LLC, Corporation, S-Corp Designation), Business Disputes, DTPA claims, and Consumer Litigation.
Regan & Frisbie, PLLC is located at 7160 Preston Road, Suite 100, Plano, Texas 75024.
Comments or questions, feel free to email him at Blaise@RFPlawfirm.com or call him at 469.200.4737.
*Nothing in this Article is to be considered as the rendering of legal advice for specific cases, or creating an attorney-client relationship, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only, and no warranty or representation is made as to the accuracy or completeness of the information contained herein.