Texas Probate & Guardianship Blog

In a previous post, I began discussing some of the fact and evidence challenges in Will contests from the challenger’s perspective. Recall that I boiled down will contests to three basic varieties of complaints: (1) complaints about the technical execution of the document, (2) complaints about the conduct of the person making the Will, and (3) complaints about the conduct of some third-party. Last time, I outlined some of the traditional fact scenarios in a contest of the first type. This time, let’s focus on challenges to Wills based on the conduct of the person signing it.

The way I see it, there are three important time periods to focus on in challenges involving the person signing the Will, also known as the Testator. If I’m asking my contestant client the right questions, I want to learn more about (1) what the Testator did before the Will was signed, (2) what was happening at the time the Will was signed, and (3) what happened after the Will was signed. Sometimes, a client can provide information about all three time periods – sometimes not. As a general rule, I would like to know as much as possible about all three, so that we can begin to look for inconsistencies, different behaviors, different attitudes and perhaps even different mental conditions of the Testator during each of these periods.

Of the potential grounds on which a challenge to a Will can be brought, there are probably only four that are attributable to some conduct of the Testator. Obviously, each comes with their own issues of evidence and proof. Perhaps the Testator lacked the mental capacity to execute a Will at the time that the challenged document was signed. Or, maybe the document itself fails to demonstrate an actual testamentary intent on the part of the Testator. Maybe the Testator was mistaken about what the Will actually said. Or, perhaps the Testator did something after signing the document to demonstrate that she intended to revoke it.

A Will is generally defined as an instrument by which a person makes a disposition of her property to take effect at his death. This little definition actually leads to a couple of pretty important conclusions. First, no Will is irrevocable until the Testator dies. The disposition of property takes effect at death, and until that time, a Testator can change her mind and revoke the instrument. This revocation might come in the form of executing a new document, or it may come as a physical act, such as tearing the document up, or tossing it in the trash.

Second, the document must actually make a disposition of property. A fair number of Texas cases have dealt with issues regarding the wording in challenged documents. A document entitled “Last Will and Testament,” which states “upon my death I leave all of my property to my husband,” is pretty clearly a Will. But a document that looks toward the preparation of some other document, like a letter of instruction to a lawyer, may not meet the definition. “Dear Lawyer, please change my Will to leave my property to my sister,” is not language that by its own terms gives anything away. The letter looks to have the lawyer prepare a document to be signed later, and so the letter likely cannot be admitted as the Testator’s Will.

By far, however, the vast majority of Will contests that I encounter dealing with the conduct of the Testator are those that touch on the issue of the Testator’s mental capacity at the time the Will was signed. “Mom must not have known what she was signing if she didn’t leave anything to me. She had Alzheimer’s, was on medication and barely even recognized friends and family at that point.”

Testamentary capacity refers directly to the mental condition of the Testator at the time that a Will is executed. In short, the Testator must have sufficient mental capacity to engage in the act of executing a Will in order for the Will to be valid. The bar for testamentary capacity is actually pretty low, but there are some basic elements that must be met. For example, the Testator must be able to understand what a Will does, be able to know their property and be able to understand who might reasonably expect to receive it upon their death.

I find challenges to Wills on a theory of inadequate capacity pretty commonplace. After all, a fair number of Wills are often executed at a time when the Testator thinks that death might be just around the corner. Often, these times are accompanied by illnesses and conditions that affect our capacity, such as dementia, senility and Alzheimer’s Disease.

Though common, Will contests based upon a lack of testamentary capacity are sometimes incredibly difficult. In most circumstances where the Will is drafted by an attorney, the document is executed in the presence of two witnesses, a notary public and maybe others. These are people who probably observed, heard and spoke to the Testator at the very moment that she was signing the Will. These witnesses will undoubtedly form the cornerstone of the opposing party’s case, and their testimony is usually going to be pretty compelling. Who better to tell us how the Testator was behaving at the time of the execution than honest strangers who saw, heard and spoke to her?

But the issue might not end with the recollection of these witnesses. After all, if other evidence shows that the Testator lacked capacity before and after the execution, should we not reasonably believe that she lacked capacity during the execution as well? Is it really that likely that the Testator had a brief moment of clarity and senility at that exact point in time? Maybe, maybe not.

More often than not, potential contestants want to bring in their own stories of how the Testator lacked capacity. That’s fine, and they may even help prove the case. But I’m far more interested in evidence that is more difficult to call into question, and that usually means that I’m looking for something medical. Show me a physician who diagnosed the Testator with severe dementia, or a doctor who prescribed heavy medication only days before the Will was signed. Even if we have to overcome the testimony of witnesses who were there when the Will was signed, I give myself much better odds when I have more than a contestant’s sneaking suspicion that something must have been off.

With tax season looming over everyone’s heads, perhaps we could use a distraction and turn our attention to the other inevitability that Benjamin Franklin mentioned more than 200 years ago – death. But let’s not be morbid about it and dwell on our own mortality. Instead, I thought it might be more fitting to talk about how even the best laid plans for our personal reckoning can be questioned and challenged by our friends, families and loved ones.

More often than not, professional service providers stress to their clients the importance of everyone having a Will. I’m guilty. I chant it like a mantra myself as I congratulate the folks that have them and scramble to help the ones that don’t. While having a Will is imperative, I should probably tell my clients to have a “good” Will, and by that I mean one that would withstand a challenge or contest.

The majority of my clients laugh at the idea of a fight over their Estate. Either their Estate is modest in their opinion, or their families would never engage in such behavior. I generally counter by explaining that my experience has taught me that no estate is too modest, and that even the most loving families can become entangled in the most brutal Will contests. All it takes is a coveted family heirloom, scorned loved ones and hurt feelings to lay the foundation for litigation that often saps the emotional and financial resources of everyone involved.

I plan to discuss some useful tools to deter and avoid these fights in subsequent posts. For now, I thought we might look at the issue from a different perspective – the person contesting the Will. Sometimes a contest has potential for success, and sometimes it doesn’t. Sometimes, a client knows something is amiss, but can’t quite put his finger on it. On what grounds can a Will be challenged? Stop me if you’ve heard this one: “Mama loved me best of all, and there’s no way she meant to leave her Estate to my good-for-nothing brother. Either she didn’t know what she was signing, or my brother made her do it. How do I stop my brother from probating this bogus Will?” The question is similar to the ones I hear from clients all the time.

Will contests generally fall into three broad categories of complaints: (1) A complaint about the technical execution of the document, (2) A complaint about the conduct of the person making the Will, or (3) A complaint about the conduct of some third-party. Set 2 and 3 aside for now. We’ll get back to them. This post will look a bit more in detail about Will contests involving a challenge based generally upon the execution of the document.

A Will is generally defined as an instrument by which a person makes a disposition of his property to take effect at his death, and which, by its nature, is subject to being revoked while the person is still living. Estate of Brown, 507 S.W.2d 801 (Tex. Civ. App. – Dallas, 1974, writ ref’d n.r.e.). Section 59 of the Texas Probate Code outlines the requisites of a Will in Texas, and it is one of the most liberal Will execution statutes in the country. To be a Will, the document must be in writing and signed by the Testator (the person making the Will.) Nothing fancy is required, and apart from the requirement that the Will must demonstrate an intention to dispose of property at death, a Will could be short and to the point.

If the Will isn’t written entirely by the Testator in his own handwriting, it must be attested to by two credible witnesses above the age of 14. Section 59 goes on to state that the Will may be made “self-proved” at any time after its execution. Often, a will is made self-proven at the same time the Testator signs it. An affidavit acknowledging certain facts regarding the execution of the Will is signed by the Testator, the witnesses and a Notary Public. The presence of a proper Self-Proving Affidavit relieves the person offering the Will of the burden of bringing one or both of the witnesses to Court to provide testimony. Thus, a Self-Proving Affidavit works as advance testimony – confirming for the Court that the Will was properly executed.

When a challenged Will is typewritten, signed by the Testator, signed by two witnesses and includes a Self-Proving Affidavit, the grounds for a complaint regarding the Will’s form and execution become somewhat limited. Many would-be contestants fail to realize that these bare facts already identify at least three witnesses who are likely to provide evidence in favor of the Will. Two witnesses and a Notary Public were presumably in the Testator’s presence when he signed the Will. In fact, they’ve already provided testimony on this, since that is the effect of the Self-Proving Affidavit. Right off the bat, our potential contestant has an uphill fight. Beyond that, since the Will was typed, it was likely prepared by an attorney and executed in her office. Add another witness to the list, since the attorney probably consulted with the Testator before signing the Will, and may even have been in the room when it was signed. Before any other facts are introduced, I already know my contestant is going to need to muster some serious evidence to prevail.

To be frank, I don’t encounter many Will contests where the basis for the fight is the technical form or execution of the document. Most of the Wills that I see are drafted well enough to suffice, properly witnessed and made self-proven. More often, Will contests fall into the other two categories that I plan to discuss later. Certainly, this isn’t always the case, and unique facts and circumstances will always exist. My point is that contestants will frequently look past the fact that their opponent often already has a handful of witnesses on their side. For those contestants that can’t quite put their finger on why the Will should be denied probate, explaining this is a lot like shutting a door in their face. All hope may not be lost, however, as there are a number of other potential bases for a Will contest. We’ll pick up with those next time.