Dear Mr. Premack: My mother and her husband (my stepfather) both made Wills leaving all their assets to each other, and then at the second death to my two sisters and me. They both said that my stepfather’s three kids would each get $1 only. Mom died in 2006 and my stepfather died in 2008. Can his kids contest the Will? – CC
They must have proper legal grounds to contest the Will of their father. After he dies and the Will is offered for probate, the proponents of the Will (you and your sisters) have the burden to prove to the court that the Will is legally valid. The court will hear your testimony on several issues, like whether he was of sound mind, whether the signature on the Will is his signature, etc. In a contest, his children might be alleging that the Will is a forgery, or that he lacked capacity to make the Will. They must have strong proof of their objections for a contest to be successful.
Your stepfather anticipated their objections, and by giving them $1 each he thought he was locking the door on them. He was not. In fact, giving them $1 made them heirs to the estate and entitles them to notification about the probate. It involves them in ways that should have been avoided.
Instead of giving someone $1, the better legal strategy is to express your love for that person and to state that person is to receive no part of your estate. By disinheriting them completely, they have a weaker legal position. In addition, that type of Will should include a no contest provision.
The 2009 Texas Legislature changed the law about no contest provisions. Under the new law, a person who contests the Will must have probable cause (legal grounds that have the weight of some evidence behind them) and must be acting in good faith (cannot just be trying to cause trouble to the rightful heirs in order to shake out some money).
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, January 15, 2010