How to Prevent Your Texas Will from Being Challenged

When setting out to make your will, you may wonder how the beneficiaries and other interested parties will react to your instructions on distribution of money and other assets. The last thing you want is for the will to be contested, which can frustrate your very purpose in writing it. Fortunately, there are things that you can do to help your will stand up to challenges after your death.

In Texas, wills can be contested on multiple grounds, such as these:

• The will was not executed according to state law.
• The testator did not have the mental capacity to make a will.
• The testator was coerced or unduly influenced by someone else.
• There was fraud or mistake involved in the making of the will.
• There is ambiguity in the will’s instructions for distribution of assets.
• The will appears to be outdated, not reflecting changes in the testator’s marital or family situation.

Careful and thorough drafting, execution and updating of your will can go a long way to preventing such problems. You may, for example:

• Include a definitive statement that the will is meant to supersede any and all prior wills you have made.
• Explain the reasons for disinheriting certain heirs or giving them reduced shares of your estate.
• Make a video recording when you execute the will and have the will attested by witnesses, so that there is a clear demonstration of your mental capacity and the lack of any improper conduct.
• Periodically have your will reviewed by your estate planning attorney to determine is any updates are needed.

Another thing that you can do to protect your will against challenges is to include a no-contest clause — a provision that punishes anyone who brings a frivolous challenge. Under such a clause, the challenger potentially forfeits their inheritance if they lose.

Texas estate law refers to this type of provision as a forfeiture clause. It is enforceable unless the challenger can show both that:

• The will contest was initially raised and continues to be pursued in good faith.
• The reason for contesting the will is justified.

A contest is considered justifiable if a reasonable person would conclude, based on evidence, that there is a good chance the contestant would win their case. This law is designed to keep out challenges that have little or no legal or factual basis.

In all aspects of making your will, you want your wishes to be clearly understood and followed. An experienced estate planning attorney can help you craft a will that can survive most any challenge and that can ensure that your assets are distributed as you intend.

Based in Plano, the Law Offices of Kevan I. Benkowitz assists clients throughout Texas in the estate planning process, including the drafting of wills and related documents. To schedule a free initial consultation, please call 972-464-2645 or contact us online.