Do I Need a Probate Lawyer to Contest a Will?

May 25th, 2022


After someone passes, the heirs or beneficiaries generally begin the search for a will.  Sometimes we get asked the question of whether a will is valid?  And, more importantly, should a potential heir or beneficiary contest the will? Here are some of the questions our probate lawyers answer most often.

Who Can Contest a Will?

Generally, an interested person who will receive less under a will than without it, and who can demonstrate that something is wrong with the will, can contest the will. 

According to Texas Probate Code Section 93, an interested party can legally dispute the validity of a will by filing a formal lawsuit.  Generally, an interested party will be an heir, a beneficiary, a spouse of the person making the will, a creditor, or a person with some other property interest in the estate.

How Long Do I Have to Contest a Will?

You can file a will contest any time after the application to probate the will has been filed in the Court.  The will contest must be filed within 2 years of the date that the will is admitted to probate.  If you are alleging forgery or fraud, then you have two years from the discovery of the forgery or fraud.

What Must be Proven to Contest a Will?

If you file the will contest, the burden is on the person trying to prove the will is valid to show (a) that the deceased person had testamentary capacity; (b) that the signature on the will is valid; and (c) that all the formalities required to execute a will have been followed.

If the will has been admitted to probate, then the person contesting the will must prove that the person making the will did not have capacity, the signature is not the decedents, or that the execution formalities were not followed.

Any time that a will contest involves an issue of undue influence or mistake, the person challenging the will bears the burden of proof.

Four Main Reasons Used to Contest a Will in Texas

(1)  Lack of Testamentary Capacity

To make and execute a will, a person must be of “sound mind” which in Texas has been equated with “testamentary capacity.”  Essentially, the person making a will must know what they are doing and what they are signing. 

More formally, testamentary capacity exists when the person making a will:

  • Knows and understands he or she is making will;
  • Understands the effect of making a will and that it will distribute his or her property at death;
  • Knows the nature and extent of the property he or she has to pass on;
  • Knows the persons to whom he or she meant to make a beneficiary.
  • Has the ability to understand the reason for the will, its effect, the beneficiary being designated, and the ability to make a reasonable judgment as to all of them.

A person must only have capacity at the time the will is executed.  However, a person contesting a will can show that lack of capacity existed at other times if it shows the condition persists and has some reasonable probability of existing at the time of the execution of the will.

(2)  Undue Influence

Undue influence exists when one person exerts such persuasion or control over another so as to inappropriately influence a person making a will to make decisions or plans that they normally would not have made.  To show undue influence, a person challenging a will must demonstrate more than the mere opportunity to influence the person making the will.  The person challenging the will must show:

  • The existence and exertion of influence.
  • That the influence subverted or overpowered the mind of the person making the will at the time the will was executed.
  • That the will would not have been made by the decedent, absent the existence of the influence.

(3)  Mistake or Fraud

A beneficiary may challenge a will if it can be shown that the person making the will made a mistake.  For instance, if they thought that they were signing a different document other than the will.  General mistakes or misconceptions about the provisions of a will do not rise to a level to invalidate a will. 

(4)  Failure of the Execution Formalities

Texas requires certain formalities to be followed when a will is created.  A person contesting a will may contest the validity of the will by challenging these formalities. 

For instance, a holographic will, or handwritten will, must be 100% in the handwriting of the person making the will.  If there are pre-printed, or computer typed, sections of the document, the will does not qualify as a “holographic” will in Texas.

A printed or typewritten will must

  • Be signed by the person making the will, or be signed at her direction in her presence;
  • Be signed by two credible witnesses over the age of 14; and
  • The witnesses must sign in the presence of the person making the will.
  • When one of these steps are lacking, the will may be challenged for its failure to follow the formalities for execution. 

Additionally, even when the formalities of one will have been followed, a will contest may be filed if the proponent can show that the will being filed with the court was revoked, especially if there is a subsequent will or codicil. 

What is a No Contest Clause, and is it Valid? 

Some Wills may have a “no contest” or “in terrorem” clause.  This clause generally penalizes the beneficiary who challenges a will and may go so far as to disinherit a beneficiary who challenges a will.   Texas Estate Code 254.005 will enforce these clauses, unless the beneficiary who contests the will proves:

      1. That just cause existed to bring the action; and
      2. The action was brought and maintained in good faith.

Do you have questions about a whether a will is valid?  Do you have questions about contesting a will?  Contact the Heights Law Group  to get your questions answered today.  Call (832) 810-3373 or send an email to

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