How to Contest a Will in Texas

Understanding the Reasons & Process for Contesting a Will in Texas

Contesting a Will in Texas The statutes governing wills can be found in Texas’ Probate Code.

For those who are looking to contest a will in Texas, they must provide a basis or a reason why they believe the will should not be honored by the court.

In addition, you have a limited amount of time to contest the will. After that, you’re out of luck. In general, there are four categories of reasons for contesting a will in Texas. Those are:

  1. Lack of Testamentary Capacity
  2. Undue Influence
  3. Due Execution
  4. Legal Noncompliance


Lack of Testamentary Capacity

Wills are presupposed to have been written by the voluntary consent of the deceased who is legally referred to as the testator. One reason that the testator’s will would not be honored is that they were not of sound mind when they wrote the will and this influenced how the testator disbursed their property.

In this instance, a family member who wishes to contest the will must show that the testator didn’t understand what was happening when they drafted it. They must also show that it would have been drafted differently had they been of sound mind.

For example, the testator may not have been aware that they were signing a will when they signed it. They may not have had any comprehension that they were giving away property. They may not have known what property they were giving away, or to whom they were giving it.

In a situation like this, the burden of proof is on the those who are contesting the will to show that the testator did something that was contrary to their own desires.

Proving Lack of Testamentary Capacity

It isn’t enough to show medical reports that the testator suffered from brain injury, senility, or dementia. Contesting parties must also show that the will was written or signed off on at a point when the testator did not understand what they were doing.

They would also need to show that the will would otherwise have been different were they not suffering from an ailment that impacted their cognition.

Generally, a contesting party must show that the execution of the will and the distribution of the property ran contrary to the testator’s own natural choices. That is why lack of testamentary capacity is often charged alongside undue influence.


Undue Influence

Undue influence occurs when a third party attempts to persuade the testator away from doing something that they would naturally want to do. This can include illegal behavior such as blackmail or extortion. It can also include legal behavior such as manipulation.

In this instance, those who are contesting the will must show that the testator made the decision under the influence of another party. They must also show that this decision swayed them away from what they otherwise would have done.

It helps in these instances to have an older copy of a will that was drafted and then changed under the influence of a third party, but that isn’t necessary to make the case.

Generally speaking, the testator is manipulated in some manner, but it can be quite difficult to prove since the testator themselves will not be available to respond.

Proving Undue Influence in Texas

There are three elements to proving undue influence in a Texas probate court. The contesting party must show:

  1. That some individual pressured, manipulated, or coerced them into a making a choice
  2. That this individual worked to subvert or overpower the testator’s natural choice
  3. That the testator would not have made this choice without the influence of the third party

Logistically, this would be nearly impossible to prove using physical evidence. The courts, however, recognize this fact and have thus allowed lawyers for contesting parties to show that undue influence was exerted over the testator using circumstantial evidence.

In essence, the court will survey the circumstances around the relationship between the influencing party and the testator. It will also evaluate the existence of a fraudulent motive. In addition, the court will evaluate the manner in which the will was either drafted or amended.

It will also evaluate the testator’s state of mind during the drafting of the will, and finally, the court will determine if the distribution of property in the will made sense in terms of the testator’s wishes.


Due Execution

In order for a will to be valid in Texas, specific steps must be taken by the testator. While there are exceptions for holographic wills (handwritten wills), most wills require a witness and a signature, among other things. When these requirements are missing, the will may be contested for lack of due execution.


Wills are legal documents. As such, they are subject to laws and requirements that mandate that they are drafted, handled, and executed in a specific way. When that is absent, all or part of the will may be thrown out.

For those who are looking to contest a will, having a lawyer who can go through the fine print can help you find the legal grounds to challenge the will.

Who is Allowed to Contest a Will in Texas?

There are not many restrictions on who is allowed to contest a will in Texas.

Basically, anyone with a stake is allowed by Section 55.001 of the Texas Estates Code to contest the legality of the will. This individual is allowed to submit evidence and call witnesses or do whatever they need to do to make their case.

However, the contesting party must prove a pecuniary interest in the estate. In other words, they must have some financial stake tied to the estate being disbursed by the will. The individual must be able to prove that they have a financial stake, or they are unlikely to be heard by the court.

Talk to an Attorney Today About Contesting a Texas Will

If so, you’ll need the aid of a skilled inheritance dispute attorney. The Dallas attorneys at Lindquist Wood Edwards LLP are proud to announce we have expanded our practice to include probate law.

Give us a call at 214-891-7581 or contact us online, and we can help you prove your case to the court.