Contesting a Will is Not About Greed As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will.
We know that this is a painful time for you, and you may be feeling guilty about your need to contest the will, but the first thing you need to know is that in most cases, disputing the legitimacy of a will is not about greed
A pretermitted child is a forgotten child who takes a part of their parents’ estate even if not mentioned in the will.
This discussion only applies where the parent dies testate, meaning the parent left a will. If the parent dies intestate, without a will, then the child would inherit a child’s portion the same as any other child and there is no need to resort to the pretermitted child statute.
The basic rules are that the child must be born after the will and is not otherwise provided for.
Many people are concerned about contesting a will in Texas because they know that the will has a no contest clause. (Almost all wills have a no contest clause in them).
In this podcast, we will discuss what you need to know about contesting a will with that clause in it.
Texas courts and the Texas Legislature have a reluctance to enforcing no contest clause because they tend to attempt to close the court's door whose purpose it is to fully litigate legal issues.
A bad person could obtain a will from someone who is mentally incompetent or obtain a will because of undue influence and the family would be afraid to bring those issues to a court for review.
The first thing to note is if a will cuts a beneficiary out completely, there is no reason for that beneficiary to be concerned about the no contest clause because he is already getting nothing. The no contest clause will have no effect on him.
For those who do receive a substantial amount under a will that they believe should be contested, the no contest clause is unenforceable if the contest was brought in good faith and with just cause.
So, the no contest clause should not be the major factor in deciding whether or not to contest a will.
Whether a will has been revoked or not is an issue that comes up in will contest. A recent Texas case showed some of the problems that can arise when one party claims that the will has not been revoked and the other party claims that it has been revoked.
A written will may not be revoked in Texas, except: by a subsequent will, codicil, or declaration in writing that is executed with like formalities; or, by the testator destroying or canceling the same or causing it to be destroyed or canceled in the testator's presence.
In either case, a testator must have testamentary capacity to revoke a will just has he must have testamentary capacity to execute a will.
When a testator has a will in his possession at his death and the original will cannot be found, there is a presumption that the will was revoked. The interplay between the presumption of revocation and the requirement of testamentary is the subject of the case we discuss in this podcast.
Wills are sometimes contested because of a problem in the way the will was signed. This is often referred to as the execution of the will. In this podcast we are going to talk about the very basic requirements of executing a will in Texas. Then, we will discuss what problems arise from executing wills.
Visit our website at TexasInheritance.Com for more information.
If there is a topic relating to inheritance disputes that you would like to hear, email me at Robert@TexasInheritance.Com.
Thanks for listening.
A will isn’t open to be contested forever. Contesting a will is limited to filing within a certain amount of time - what the law refers to as the statute of limitations.
You may be surprised to learn that the statute of limitations for contesting wills does not start at the time of death, but when the will is admitted to probate.
That means that if you feel a will should be contested, you must act quickly. If you have a meritorious claim but you don't act quickly, your claim can be lost. This podcast discusses the issues that a person contesting a will must keep in mind. What are the time limits or statute of limitations? When do they start running?
Remember, contesting a will is not about greed. It is doing what is right to make sure that our elderly are not taken advantage of by someone. As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will.
You ordered a DNA test kit. When your received your results, you found out that your father was someone you did not know or did not know they were your father. Do you inherit his estate? We will discuss those issues in a Texas context.
I am Robert Ray, a Texas attorney who handles litigation involving inheritance disputes. I am Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. My principal office is in Lantana, Texas, in the Dallas/Fort Worth area but I handle cases all over Texas.
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues at my website, TexasInheritance.Com or on my blog at InheritanceLaws.Info.