Full question:
My wife passed away 01/01/09 the last will she made is old and does not reflect our married status. It just lists me as a friend. What can I do to change it or break it?
- Category: Wills and Estates
- Subcategory: Will Contests
- Date:
- State: Texas
Answer:
Will contests challenge the admissibility of wills in probate courts. It is a kind of litigation that questions whether a will should be properly admitted by the court as evidence of a decedent's wishes regarding the distribution of his estate, appointment of guardians for minor children, or other issues dealing with the decedent's estate. One may not contest the validity of a will merely because that person does not like the will's provisions. A will's validity is not determined by one's sense of "fairness" of the will's contents. Nor is a will's validity determined by how reasonable the will's provisions appear nor on the timing of disbursements.
Despite the feelings of a decedent's family or friends, a will is most likely to be challenged by someone claiming one of the following:
-the will was not properly written, signed or witnessed, or did not meet the state's formal requirements
-the decedent lacked mental capacity at the time the will was executed
-the decedent was a victim of fraud, force, or undue influence
-the will is a forgery
If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case.
If someone files an objection to your will or produces another will, a "will contest" has begun. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. Not just anyone can contest a will. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent. For example, if a decedent revises his will and the later will is less favorable to someone than an earlier will, that person has standing. Someone may initiate a will contest to have a different person, bank, or trust company serve as the personal representative for an estate or serve as a trustee of trusts created by the will. Some of the most common challenges to wills come from potential heirs or beneficiaries who received less than they had anticipated.
The following is a TX statute:
§ 93 PROB. CODE. Period for Contesting Probate
After a will has been admitted to probate, any interested person may
institute suit in the proper court to contest the validity thereof,
within two years after such will shall have been admitted to probate, and
not afterward, except that any interested person may institute suit in
the proper court to cancel a will for forgery or other fraud within two
years after the discovery of such forgery or fraud, and not afterward.
Provided, however, that incapacitated persons shall have two years after
the removal of their disabilities within which to institute such
contest.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
