Texas Probate and Will Challenges: Competence and Undue Influence

Texas Attorney R. David Weaver

In a recent interview, we asked R. David Weaver, a Texas attorney with over 25 years experience whose practice offers a wide range of legal services including estate planning and probate, to explain these concepts. Here’s what he told us:

The biggest challenge generally relates to competence. It’s not so much that the person is incompetent, but maybe would have fallen under undue influence by a particular heir. Typically, when there are multiple children involved and most have moved on, one child tends to stay and he cozies up to mom. The next thing you know, mom is starting to change her Will and now when she dies, everybody finds out for the first time that everything has been left to this one child. Everybody gets suspicious and they say, ‘Well, mom wasn’t quite right in the head anyway and she was old and under his influence,’ and so forth and so on. Then, they file a challenge to the Will. They’re difficult to establish, but you can make a case on that.

Challenging the mental state of the testator

Challenging the mental state of the testator can be a very difficult process as that person is already deceased. However, it can be done. Weaver explained how:

One of the things that you do is look at what was done with property prior to the death. In other words, were there any unusual expenditure of funds or were there any unusual transactions for the sale or transfer of any property. Were there assets that were transferred over to the sole beneficiary – or who ultimately became the sole beneficiary of the Will? Those are various things that are evidence which might suggest that there was an undue influence or some kind of chicanery on the part of the sole beneficiary. It happens and it’s funny because you see families where they have gotten along for years without any great family squabbles. Then the patriarch or matriarch of the family dies and it just absolutely goes to pieces.

Weaver says that in his 25 years of practice, one of the things he’s seen that really matters is the size of the estate. He says that if it is a large estate, you’re more likely to have disputes, contests and lengthy probate court proceedings. So, the more successful you are at acquiring money and property, the more likely it is that your heirs are going to fight over it.

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