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Should You Settle Your Will Contest Case or Go to Trial?

Family Arguing Over Will That May Go To Trial

The Texas Probate Code allows interested parties to dispute the validity of a will by filing a lawsuit. Typically, the person who contests a will is someone who would benefit financially if the terms of the document are not enforced. A challenger might have received more property under a previous will or if the decedent is held to have died intestate.

Someone contesting a will must set forth the reason why the instrument should be declared invalid. Common legal grounds for contesting a will include:

  • Undue influence — This means that the provisions in a will do not reflect the testator’s true intentions but are a result of improper coercion from someone who manipulated the decedent.
  • Lack of testamentary capacity — A will could be invalidated if the deceased was suffering from dementia, memory loss or another condition that left them without the capacity to draft a legal document.
  • Fraud or forgery — Claims of fraud or forgery arise when someone alleges that the testator did not sign the will or that a beneficiary lied to the testator to induce them to include or remove a bequest.
  • Lack of due execution — Texas requires specific steps to be taken when a will is signed. For example, a minimum number of witnesses must be present at signing. If the formal steps for signing aren’t followed, the will could be invalid.

Once the will contest is filed, it proceeds much like other civil cases. There is a discovery period, which can include deposition testimony, answers to interrogatories and document requests. If mental capacity is an issue one or more medical expert will likely be retained to deliver their opinion.

In many probate cases, trial is averted because almost all will contests go to mediation. Some judges require it, while others “strongly suggest” it. That’s because Texas policy greatly favors settling estate disputes outside of court.

Uncertainty is another reason most will contests are resolved without trial. Going to trial means making your arguments and then turning over the decision to a judge or jury (Texas law allows jury trials in will contests). No matter how good your lawyer is or how strong you think your arguments are, no one can predict how a judge or jury will decide a case.

The combination of uncertainty, time and expense leads most people to settle probate disputes without going to trial. This usually also gives the parties, often from the same family, a better chance to preserve their relationship, or at least helps them heal faster than if they engaged in a courtroom battle.

At the Law Firm of Richard L. Ellison, P.C., I have decades of experience helping clients contest and defend wills. If you need advice about a probate dispute, please call 830-955-8168 or contact my Kerrville firm online for a confidential consultation.