San Antonio Express-News
July 1, 2003

Avoiding a Will Contest

copyright 2003, Paul Premack

His children have a legal right to challenge any Will he creates if they have adequate legal grounds. A Will can be ruled invalid for a variety of reasons.

The most common complaint is that the testator (the person who made Will) lacked testamentary capacity on the date the Will was signed. Before anyone can make a valid Will, testamentary capacity is required. It means the person (1) understood the business in which he was engaged (the making of his Will); (2) understood the effect of the Will; (3) understood the general nature and extent of his assets; and (4) knew the natural objects of his bounty (that is, who his children were).

A Will can also be ruled invalid if it is a forgery or a fraud, or if it does not reflect the testator’s true wishes (but instead reflects the desires of someone else who is putting undue pressure on the testator).

A case decided recently by Texas’ 13^th Court of Appeals is a great illustration. In the matter of the Estate of Flores, the husband made a Will leaving his estate to his wife. If she was not alive, it was to go to three of his children. He left a fourth child out entirely, and that child contested the Will when Mr. Flores died.

He let fly with a laundry list of complaints: that the Will was not executed with the formalities required by law, that it was a forgery and had been altered, that his father had made a mistake when he signed it, and that his father lacked testamentary capacity. The court carefully examined each of these claims and dismissed the case for lack of evidence.

A key complaint was son’s claim that being left out of the Will was a mistake on his father’s part, and that the Will should thus be voided. The court decided that failure to identify the existence of a child may be a mistake, but it has no bearing on the fact that the testator intended to leave nothing to that child. In other words, it is not a legal requirement that all the children be identified, nor that a child be explicitly disinherited. It is legally sufficient to simply make a positive statement identifying your heirs, and anyone who is off the list gets nothing.

But sometimes winning is not enough; avoiding the battle is even better. You should carefully plan now to avoid a Will contest. Your attorney should keep notes that establish your testamentary capacity. Your Will should specifically identify and disinherit anyone you desire to exclude. And your Will should contain a no-contest clause that says anyone who contests your Will is not entitled to any inheritance. That level of clarity will make it very difficult for anyone to claim you forgot about them.