Will Contest for Improper Execution – Attorneys in Houston, Texas
Probate litigation can be used to have Will declared invalid if it was not executed properly. If successful, the court would then use the prior Will to distribute assets or, if there was no prior Will, the deceased person’s estate will be distributed according to law.
In order for a Will to be properly created in Texas, it MUST conform with a specific set of guidelines which are outlined in Texas Probate Code § 59(a). The purpose of these guidelines is to protect against fraud and to ensure that the testator’s property is divided up according to their wishes.
A testator can choose to write either an “attested will” or a “holographic will”.
A holographic will is a will that is completely handwritten in the testator’s own handwriting and signed by him or her. This does not require any witnesses. Attested wills are by far the most common types of wills created in Texas. Texas law requires that all attested wills conform with three specific requirements:
- The written Will must be signed by the testator, or by another person in the testator’s presence and under the testator’s direction. This requirement is in place to ensure that the testator consents to how his or her estate will be divided.
- The will must be made in the presence of two or more credible witnesses over the age of fourteen. This element of the cause of action aims at protecting against fraud and also ensures that the witnesses have the capacity to understand their role as witnesses.
- The witnesses must sign the will in the presence of the testator within a reasonable time after witnessing the signing.
As mentioned above, a holographic Will must be completely in the testator’s (the person executing the Will) handwriting. It cannot be typewritten or from a computer at all or it can be declared invalid.
If any of these requirements are not met, the will may be considered improperly executed and be thrown out. An improperly executed will is often thrown out because leaving out even a single one of these crucial elements exposes the testator and his or her estate to the causes of action outlined above.
For example, a mother bequeathed a significant portion of her estate to the maid. When the will was signed by the testator, the only witness present was the maid herself. The will will likely be declared invalid because the requisite number of witnesses at the time of signing is lacking. Thus, the will was improperly executed and can be declared void.
If you have lost your inheritance because a new Will was executed, you can have the court declare the new one void if it was not executed in accordance with the law. Call Michael P. Fleming today for a free consultation.