Contesting a Will Made Simple – Know Your Grounds
Understanding Valid Grounds for Contesting a Will
When something about a loved one’s will doesn’t feel right, you might wonder if there’s anything you can do. The truth is, not all wills can be challenged, but there are several recognized legal reasons that courts take seriously. These grounds for challenging a will aren’t just technicalities—they protect the true wishes of those who have passed on.
| Legal Ground | What It Means |
|---|---|
| Lack of Testamentary Capacity | The person didn’t understand what they were doing when making the will |
| Undue Influence | Someone improperly pressured or manipulated the will-maker |
| Fraud or Forgery | The will contains false information or fake signatures |
| Improper Execution | The will wasn’t signed or witnessed according to state laws |
| Newer Will Exists | A more recent valid will supersedes the earlier one |
Imagine finding your father’s will was signed while he was heavily medicated following surgery. Or perhaps your grandmother suddenly changed her entire estate plan while isolated with a caregiver who now inherits everything. These situations feel wrong because they might actually violate legal principles established in important cases like In re Plaut’s Estate or standards outlined in Section 9 of the Wills Act 1837.
The reality is sobering: less than 1% of wills are formally contested, and only a tiny fraction of those challenges succeed. Courts generally presume a will is valid, placing the burden on the challenger to prove otherwise. This makes sense—we want to respect people’s final wishes whenever possible.
Before you consider contesting a will, understand what you’re getting into. The process often costs thousands of dollars in legal fees, can stretch on for years, and might permanently damage family relationships. Even with strong evidence, there’s no guarantee of success.
Not just anyone can contest a will, either. You need legal “standing,” which means you must have a financial stake in the outcome—like being named in a previous will or qualifying as an heir under state intestacy laws if no will existed at all.
If you believe something is truly wrong with a loved one’s will, your first step should be talking with a knowledgeable probate attorney. They can help you understand if you have a legitimate case worth pursuing based on established legal grounds, not just disappointment or suspicion.
Remember these important terms if you’re considering challenging a will:
– attorney to contest a will
– how long do you have to contest a will
– will contest
– capacity
Who Has Standing to Challenge a Will?
Not everyone can march into court and contest a will, no matter how unfair they think it might be. Before you can even begin discussing the grounds for challenging a will, you need to have what lawyers call “legal standing.”
Think of standing as your ticket to the courthouse. Without it, the judge won’t even hear your case.
In Texas probate courts, only “interested persons” have this golden ticket. But what does that actually mean in real life?
An interested person is someone who has a genuine financial stake in how the estate gets distributed. This typically includes:
Heirs-at-law – These are the relatives who would inherit under Texas law if there was no will at all. This might be a spouse, children, parents, or even more distant relatives depending on the family situation.
Beneficiaries – Anyone named in either the current will or a previous will has standing. So if you were included in Dad’s 2018 will but mysteriously removed from his 2022 will, you can challenge the newer document.
Creditors – If the deceased owed you money, you have a right to make sure those debts get paid from the estate.
Fiduciaries – Executors or administrators named in the will have standing to protect their appointed role.
Even minors can contest a will, though they’ll need a legal guardian to represent them until they turn 18.
The Texas Supreme Court has explained this concept clearly in cases similar to In re Plaut’s Estate, stating that an interested person is “one who has such an interest as may be impaired or defeated by the probate of the will, or benefited by setting it aside.”
What’s interesting is what doesn’t count. Those tearful deathbed promises (“Don’t worry, I’ll make sure you get the lake house”) carry no legal weight. Your feelings of unfairness, no matter how justified, don’t establish standing. You need that direct financial connection to the outcome.
California Probate Code § 8000 offers a similar definition to Texas law, including “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.”
If you’re considering contesting a will in Texas, determining whether you have standing should be your first step. Without it, your will contest won’t make it past the courthouse door – no matter how compelling your reasons might be.
Grounds for Challenging a Will
When someone you love passes away and leaves behind a will that just doesn’t seem right, you might wonder what can actually be done about it. The law doesn’t allow challenges based on simple disagreements or hurt feelings, but it does recognize specific situations that can invalidate a will. These grounds for challenging a will are more than just suspicions—they’re legally defined conditions that could mean the document doesn’t truly represent your loved one’s wishes.
Lack of Testamentary Capacity — Core Grounds for Challenging a Will
“My father signed his will the day after major surgery when he was still confused from the anesthesia.” Stories like this represent one of the most common reasons people contest wills—lack of testamentary capacity.
This legal standard comes from the landmark 1870 case Banks v Goodfellow, which established that a person making a will must:
- Understand they’re creating a will and what that means
- Know what property they own
- Recognize who their natural beneficiaries would be (like children or spouses)
- Not have a mental disorder that affects their decisions about who gets what
“Many people think any diagnosis of dementia automatically invalidates a will, but that’s simply not true,” says Keith Morris. “What matters is the person’s mental state at the exact moment they signed the document.”
Even someone with early-stage dementia might have perfectly clear “lucid intervals” when they can make valid legal decisions. That’s why medical records, witness testimony about the person’s behavior, and sometimes expert opinions become crucial evidence in these cases.
Undue Influence, Fraud & Forgery: When Pressure or Deceit Void Wishes
Have you ever heard about a caregiver who suddenly receives a massive inheritance after isolating an elderly person from their family? That’s the classic example of undue influence—when someone exerts such pressure that it overwhelms the will-maker’s free choice.
As one judge colorfully put it in the case of Wingrove v Wingrove: “To be undue influence in the eye of the law there must be—to sum it up in one word—coercion.” It’s not just persuasion or suggestions; it’s pressure that essentially replaces the will-maker’s intentions with someone else’s.
Fraud takes a different approach—deceiving the will-maker. This might involve telling them they’re signing a different document or spreading vicious lies about a family member to get them disinherited.
Forgery is more straightforward but equally serious: someone faked a signature or created a fraudulent document. These cases often require handwriting experts who analyze signature patterns, document age, and other technical details.
In a recent case we handled, a suspicious handwritten will appeared after an elderly gentleman’s death. The document conveniently left everything to a new “friend” who had inserted himself into the man’s life just months earlier. Our handwriting expert quickly identified inconsistencies that helped invalidate the fraudulent document.
Failure to Meet Execution Requirements
Sometimes the problem isn’t what’s in the will but how it was created. Every state has specific legal requirements for making a valid will, and failing to meet these technical requirements is among the clearest grounds for challenging a will.
In Texas, a standard will must be:
– In writing
– Signed by the will-maker (or by someone else at their direction and in their presence)
– Witnessed by at least two credible witnesses who also sign the document
About half of U.S. states, including Texas, also recognize holographic (handwritten) wills. These typically don’t need witnesses but must be entirely in the will-maker’s handwriting and signed by them.
These formalities aren’t just bureaucratic red tape—they exist to protect the process and ensure the document truly represents someone’s final wishes, as emphasized in Section 9 of the Wills Act 1837, which heavily influenced American will laws.
A Newer or Conflicting Will Appears
“We found Dad’s real will in his desk drawer after the funeral. It was completely different from the one his business partner submitted to the court.”
When a newer valid will turns up, it supersedes older versions. The legal principle is simple: the most recent valid will controls how the estate is distributed.
This situation often arises when:
– Family members find a more recent will among personal papers
– The deceased created multiple wills without clearly revoking previous ones
– A codicil (amendment) changed certain provisions but wasn’t properly incorporated
If no valid will exists after a successful challenge, the estate passes according to state intestacy laws—as if no will had been written at all.
No-Contest Clauses: Double-Edged Sword
Many wills contain what lawyers call an “in terrorem” or no-contest clause—a provision that essentially says, “If you challenge this will and lose, you get nothing.” These clauses aim to prevent family fights and frivolous contests.
In Texas, courts interpret these clauses strictly, as noted in the case of Di Portanova v. Monroe. However, they have important limitations:
First, they only affect people actually named in the will—if you’re not getting anything anyway, you have nothing to lose. Second, many states won’t enforce them if the contestant had good reason to bring the challenge. Finally, if the will itself is found invalid, the no-contest clause falls with it.
Before challenging a will with such a clause, carefully consider the stakes. As one client put it: “I had to decide if fighting for what I believed was right was worth potentially walking away with nothing.”
Understanding these legal grounds can help you determine whether a will contest makes sense in your situation. While challenging a will is never easy, when genuine issues exist with a loved one’s will, the law provides pathways to ensure their true wishes are honored.
How to Contest a Will: Step-by-Step Roadmap
Believing you have valid grounds for challenging a will is just the first step. The path ahead requires careful navigation through the legal system. Here’s how the process typically unfolds:
First, consult with an experienced probate attorney. This isn’t something you want to tackle alone. At Keith Morris & Stacy Kelly, we’ve guided countless clients through will contests with over 40 years of combined experience in probate litigation. We’ll help determine if your concerns have legal merit before you invest time and emotional energy in a challenge.
Timing matters enormously. In Texas, you generally have two years from when a will enters probate to file your contest. However, if you act before probate begins, you can file what’s called a caveat with the court, which ensures you’ll receive notification when the will is submitted. Missing these deadlines can permanently bar your right to contest, no matter how strong your case might be.
Once you decide to move forward, your attorney will prepare and file a formal petition with the probate court. This document outlines your specific grounds for contesting the will and explains what outcome you’re seeking – whether that’s invalidating the entire will or just certain provisions.
The evidence-gathering phase is often the most intensive part of the process. Depending on your grounds for contest, you might need medical records showing cognitive decline, witness statements about suspicious behavior, professional handwriting analyses, or documentation of unusual circumstances surrounding the will’s creation.
Formal findy comes next. This legal process allows both sides to request documents, take sworn depositions, and exchange information. It’s thorough but can be time-consuming – sometimes lasting several months depending on the complexity of your case.
Many will contests never see the inside of a courtroom. Mediation offers a chance to resolve disputes without a trial, potentially saving thousands in legal fees while preserving family relationships. We’ve seen many contentious cases reach reasonable compromises through skillful mediation.
If settlement isn’t possible, trial preparation begins in earnest. Your attorney will prepare witnesses, organize exhibits, and craft legal arguments. Unlike what you might see on TV, will contests are typically decided by a judge rather than a jury in what’s called a bench trial.
After hearing all evidence, the judge will determine whether the will is valid, partially valid, or should be thrown out entirely. This decision can sometimes take weeks following the conclusion of the trial.
If the outcome isn’t in your favor, you may have appeal options to higher courts, though appeals have their own strict timelines and requirements.
Throughout this challenging journey, having the right attorney to contest a will makes all the difference. The process can be emotionally draining and financially significant. At Keith Morris & Stacy Kelly, we understand what’s at stake for you. We focus on aggressive litigation when needed but always aim for quick resolutions to minimize both the emotional and financial burden on our clients.
Each will contest is unique. The specific circumstances of your case will shape how these steps unfold, which is why personalized legal guidance is invaluable when challenging a will.
Evidence, Deadlines & Costs
When you’re considering a will contest, three factors will determine your success: the strength of your evidence, meeting critical filing deadlines, and being prepared for the financial investment. Let’s talk about what this really means for you.
Burden of Proof
In the legal world of will contests, timing affects who needs to prove what:
If you challenge a will before it’s admitted to probate, the person trying to validate the will must prove it’s legitimate. But if you contest after probate has started, the burden shifts to you to prove something’s wrong.
Most will contests use the “preponderance of evidence” standard—essentially meaning “more likely than not.” But for serious allegations like fraud, courts often require “clear and convincing evidence,” which is a higher bar to clear.
“The burden of proof is like carrying a backpack uphill,” explains Keith Morris. “In pre-probate contests, the other side carries the heavy load. After probate begins, that weight shifts to your shoulders.”
Critical Evidence
Your evidence needs will depend entirely on your grounds for challenging a will:
For lack of capacity cases, medical records are gold. We typically gather physician notes, hospital records, medication lists, and cognitive assessment results. Testimony from doctors who treated the deceased can be particularly powerful, as can accounts from people who witnessed confused behavior.
When undue influence is suspected, we look for evidence showing isolation (like suddenly restricted visitor access), unusual dependency on the suspected influencer, or patterns of control. Phone records, witness statements, and changes in the deceased’s routine often tell this story.
For fraud or forgery claims, handwriting experts become essential. These specialists analyze signature patterns, pen pressure, and other document characteristics. We’ve had cases where experts identified forged signatures by examining microscopic details invisible to the untrained eye.
With improper execution challenges, the focus shifts to the will-signing ceremony itself. We’ll need testimony from anyone present about whether proper procedures were followed. Was the testator present? Did witnesses sign in each other’s presence? These technical details matter enormously.
If a newer will exists, producing the original document (or a certified copy) becomes your primary evidence. We’ll also need to establish that it was properly executed and never revoked.
Deadlines Matter
Missing the deadline to contest a will is like missing the last train home—there’s usually no second chance. These timeframes vary dramatically by state:
| State | Contest Deadline | What This Means For You |
|---|---|---|
| Texas | 2 years after probate | Generous window, but don’t delay |
| Illinois | 6 months after probate | Half the time of many states |
| California | 120 days from petition | Very tight timeline |
| Florida | 3 months after notice | Among the shortest in the nation |
In Texas, you can file a “caveat” before probate begins, which ensures you’ll receive notice when someone submits the will. This protective measure can give you valuable additional time to prepare your case.
As we explain on our page about how long do you have to contest a will, these deadlines are strictly enforced. We’ve seen heartbreaking cases where people with legitimate claims were turned away simply because they waited too long.
Financial Considerations
Let’s be candid about costs. Will contests require significant investment:
Attorney fees typically range from $250-$750 per hour, depending on experience and location. Court filing fees add another $200-$500. If you need expert witnesses (and most cases do), expect to pay $2,000-$10,000 or more for their time and testimony. Depositions cost $500-$2,500 each, and document production adds hundreds more.
All told, most will contests cost between $10,000 and $50,000, with complex cases running higher. Sometimes these expenses can be recovered from the estate if you win, but there’s never a guarantee.
This financial reality is one reason why will contests succeed less than 1% of the time. People simply don’t pursue weak cases when the financial stakes are this high.
In our practice across Houston, Fort Worth, and Austin, we help clients honestly assess both the legal merits and financial realities before proceeding. We’ve found that this straightforward approach saves everyone heartache and unnecessary expense in the long run.
“Will contests are serious undertakings,” says Stacy Kelly. “We want our clients to make fully informed decisions about whether the potential benefit justifies the certain costs.”
Preventing Future Will Contests
While we’ve focused on grounds for challenging a will, let’s flip the script and talk about how you can protect your own estate plan from challenges after you’re gone. A little prevention now can save your loved ones significant heartache and expense later.
Observe All Formalities
The simplest way to prevent technical challenges is to follow all legal requirements when creating your will:
- Sign your will with at least two disinterested witnesses present
- Make sure your witnesses sign while you’re watching and can see each other
- Consider having the document notarized to create a “self-proving” will
- Use clear, straightforward language that leaves no room for interpretation
“The most successful wills I’ve seen are those where every ‘i’ was dotted and every ‘t’ crossed,” says Keith Morris. “Simple formality errors can undo even the most carefully considered estate plans.”
Document Capacity
If you’re concerned about potential capacity challenges—especially if you’re older or have health issues—take these extra steps:
- Schedule a doctor’s appointment on the same day you sign your will
- Set up a video recording of your will signing, including a statement about your understanding of what you’re doing
- Ask your attorney to document their observations about your mental clarity
- Take time to review your will thoroughly and ask questions before signing
These precautions create a powerful record showing you knew exactly what you were doing when you created your will—making it much harder for anyone to claim otherwise later.
Communicate Openly
Many will contests grow from seeds of surprise or misunderstanding. Clear communication can prevent these problems:
Talk with your family members about your estate plan while you’re still here. You don’t need to share every detail, but giving them a general idea can prevent shock later.
If you’re planning unequal distributions—like leaving one child more than another—consider explaining your reasoning. You can do this in person or include a letter with your will.
Keep your will updated after major life events like marriages, births, deaths, or significant changes in your financial situation. An outdated will is more vulnerable to challenges.
Avoid making last-minute changes, especially if your health is failing. These eleventh-hour revisions are prime targets for will contests.
Consider a No-Contest Clause
A well-crafted no-contest clause can discourage frivolous challenges by creating serious consequences for anyone who contests your will:
Include meaningful bequests to anyone who might be tempted to contest. They need to have something to lose if the clause is triggered.
Make the consequences crystal clear: “If any beneficiary contests this will, their share shall be forfeited as if they predeceased me.”
Work with an attorney who understands Texas law to ensure your clause will be enforceable. Not all no-contest clauses hold up in court.
“A no-contest clause isn’t a bulletproof vest,” Stacy Kelly notes, “but it does make potential challengers think twice before filing.”
Explore Alternatives to Wills
Some assets can pass outside your will entirely, making them immune to will contests:
Revocable living trusts offer privacy and bypass probate altogether, making them much harder to challenge than wills.
Joint tenancy with right of survivorship allows property to pass automatically to the surviving owner without going through probate.
Transfer-on-death designations for financial accounts and beneficiary designations on life insurance and retirement accounts go directly to named beneficiaries regardless of what your will says.
In our practice across Texas, we’ve seen how these alternative methods can create a smoother transition for families and reduce the likelihood of disputes.
At Keith Morris & Stacy Kelly, we can help you assess whether your estate might attract unwanted litigation and suggest protective measures custom to your situation. Learn more about potential risks on our page: Is Your Estate at Risk for Probate Litigation?
The best time to prevent a will contest is now—while you’re still here to make your wishes clear and legally sound.
Frequently Asked Questions about Grounds for Challenging a Will
What’s the real success rate of will contests?
If you’re thinking about contesting a will, you should know that the odds aren’t exactly in your favor. The reality is sobering – less than 1% of all wills ever face a formal contest, and only a tiny fraction of those challenges actually succeed.
This low success rate isn’t just coincidence. Courts generally start with the presumption that a properly executed will represents the true wishes of the deceased. As legal expert Steven J.J. Weisman puts it: “People may underestimate how difficult it is to challenge a will and that the burden of proof is always on the person challenging the will.”
That said, don’t lose all hope. Many will contests never make it to trial because they settle beforehand. These settlements often involve compromises where contestants receive something, even if the entire will isn’t thrown out. Sometimes just the serious threat of a contest with solid grounds for challenging a will can bring the other side to the negotiating table.
How long do I have to file a contest?
Time is definitely not on your side when it comes to contesting a will. The deadlines vary dramatically depending on where you live:
In Texas, you have a relatively generous window of two years after a will is admitted to probate. Illinois residents get just six months – miss that deadline, and you’re out of luck. Some states give you as little as 90 days to file your objections.
There’s a strategic option worth knowing about: filing before the will is even admitted to probate. By submitting what’s called a caveat or opposition, you can contest immediately when someone tries to probate the will.
Here’s the most important thing to remember: once these deadlines pass, your right to contest typically vanishes – no matter how strong your case might be or how valid your grounds for challenging a will. This is why talking to an attorney quickly is absolutely crucial if something about a will doesn’t seem right.
Can contesting a will reduce or forfeit my inheritance?
Yes, this is a very real risk that should make you pause and carefully consider your options. The culprit is what’s called a no-contest clause (or “in terrorem” clause in legal-speak). If you’re already named as a beneficiary in a will containing such a clause, and your challenge fails, you could lose everything the will would have given you.
However, no-contest clauses only affect you under specific circumstances:
First, you must already be named as a beneficiary in the will (if you’re getting nothing, you have nothing to lose). Second, your challenge has to fail. And third, the court must actually enforce the no-contest clause – some states won’t enforce these clauses if you had “probable cause” for your challenge, even if you ultimately lose.
Sometimes courts find partial invalidity – upholding some parts of the will while invalidating others. When this happens, the distribution can get complicated fast, with some beneficiaries receiving their original shares and others getting different amounts.
At Keith Morris & Stacy Kelly, Attorneys at Law, we’ll help you weigh these risks against the potential benefits of contesting a will. With over 40 years of combined experience in probate litigation, we can help you understand whether your case is among the small percentage that might succeed, or if you’re better off exploring other options.
Conclusion
When it comes to grounds for challenging a will, knowledge truly is power. Whether you’re contemplating a contest or creating an estate plan that can weather legal storms, understanding these legal principles makes all the difference.
While the odds may seem stacked against successful challenges—with less than 1% of contests ultimately prevailing—valid challenges serve a vital purpose in our legal system. They protect vulnerable individuals from manipulation, ensure authentic wishes are honored, and uphold the integrity of the estate planning process.
At Keith Morris & Stacy Kelly, Attorneys at Law, we bring a human touch to this complex area of law. Our team understands that behind every will contest is a family story, often marked by confusion, hurt feelings, and genuine concern. We’ve spent over 40 years combined helping Texas families steer these difficult waters.
Our approach is straightforward and personal:
We take time to understand your unique situation before recommending any course of action. Some cases call for aggressive litigation, while others benefit from careful negotiation. We focus on finding the fastest path to resolution—because we know that prolonged legal battles only compound the emotional and financial toll on families.
Most importantly, we believe in honest evaluation. Not every will should be contested, and we’ll tell you straight if your case faces significant problems. This candor has earned us the trust of clients throughout Houston, Fort Worth, Austin, and across Texas.
Whether you’re worried about a loved one’s will or want to make your own estate plan as bulletproof as possible, we’re here to help with practical, down-to-earth guidance. The legal maze of probate doesn’t have to be intimidating when you have experienced guides at your side.
For more information about how we can assist with probate and estate matters, visit our estate litigation services page or reach out for a consultation. Let’s work together to find clarity and peace of mind during challenging times.