Challenging Challenges

With tax season looming over everyone’s heads, perhaps we could use a distraction and turn our attention to the other inevitability that Benjamin Franklin mentioned more than 200 years ago – death. But let’s not be morbid about it and dwell on our own mortality. Instead, I thought it might be more fitting to talk about how even the best laid plans for our personal reckoning can be questioned and challenged by our friends, families and loved ones.

More often than not, professional service providers stress to their clients the importance of everyone having a Will. I’m guilty. I chant it like a mantra myself as I congratulate the folks that have them and scramble to help the ones that don’t. While having a Will is imperative, I should probably tell my clients to have a “good” Will, and by that I mean one that would withstand a challenge or contest.

The majority of my clients laugh at the idea of a fight over their Estate. Either their Estate is modest in their opinion, or their families would never engage in such behavior. I generally counter by explaining that my experience has taught me that no estate is too modest, and that even the most loving families can become entangled in the most brutal Will contests. All it takes is a coveted family heirloom, scorned loved ones and hurt feelings to lay the foundation for litigation that often saps the emotional and financial resources of everyone involved.

I plan to discuss some useful tools to deter and avoid these fights in subsequent posts. For now, I thought we might look at the issue from a different perspective – the person contesting the Will. Sometimes a contest has potential for success, and sometimes it doesn’t. Sometimes, a client knows something is amiss, but can’t quite put his finger on it. On what grounds can a Will be challenged? Stop me if you’ve heard this one: “Mama loved me best of all, and there’s no way she meant to leave her Estate to my good-for-nothing brother. Either she didn’t know what she was signing, or my brother made her do it. How do I stop my brother from probating this bogus Will?” The question is similar to the ones I hear from clients all the time.

Will contests generally fall into three broad categories of complaints: (1) A complaint about the technical execution of the document, (2) A complaint about the conduct of the person making the Will, or (3) A complaint about the conduct of some third-party. Set 2 and 3 aside for now. We’ll get back to them. This post will look a bit more in detail about Will contests involving a challenge based generally upon the execution of the document.

A Will is generally defined as an instrument by which a person makes a disposition of his property to take effect at his death, and which, by its nature, is subject to being revoked while the person is still living. Estate of Brown, 507 S.W.2d 801 (Tex. Civ. App. – Dallas, 1974, writ ref’d n.r.e.). Section 59 of the Texas Probate Code outlines the requisites of a Will in Texas, and it is one of the most liberal Will execution statutes in the country. To be a Will, the document must be in writing and signed by the Testator (the person making the Will.) Nothing fancy is required, and apart from the requirement that the Will must demonstrate an intention to dispose of property at death, a Will could be short and to the point.

If the Will isn’t written entirely by the Testator in his own handwriting, it must be attested to by two credible witnesses above the age of 14. Section 59 goes on to state that the Will may be made “self-proved” at any time after its execution. Often, a will is made self-proven at the same time the Testator signs it. An affidavit acknowledging certain facts regarding the execution of the Will is signed by the Testator, the witnesses and a Notary Public. The presence of a proper Self-Proving Affidavit relieves the person offering the Will of the burden of bringing one or both of the witnesses to Court to provide testimony. Thus, a Self-Proving Affidavit works as advance testimony – confirming for the Court that the Will was properly executed.

When a challenged Will is typewritten, signed by the Testator, signed by two witnesses and includes a Self-Proving Affidavit, the grounds for a complaint regarding the Will’s form and execution become somewhat limited. Many would-be contestants fail to realize that these bare facts already identify at least three witnesses who are likely to provide evidence in favor of the Will. Two witnesses and a Notary Public were presumably in the Testator’s presence when he signed the Will. In fact, they’ve already provided testimony on this, since that is the effect of the Self-Proving Affidavit. Right off the bat, our potential contestant has an uphill fight. Beyond that, since the Will was typed, it was likely prepared by an attorney and executed in her office. Add another witness to the list, since the attorney probably consulted with the Testator before signing the Will, and may even have been in the room when it was signed. Before any other facts are introduced, I already know my contestant is going to need to muster some serious evidence to prevail.

To be frank, I don’t encounter many Will contests where the basis for the fight is the technical form or execution of the document. Most of the Wills that I see are drafted well enough to suffice, properly witnessed and made self-proven. More often, Will contests fall into the other two categories that I plan to discuss later. Certainly, this isn’t always the case, and unique facts and circumstances will always exist. My point is that contestants will frequently look past the fact that their opponent often already has a handful of witnesses on their side. For those contestants that can’t quite put their finger on why the Will should be denied probate, explaining this is a lot like shutting a door in their face. All hope may not be lost, however, as there are a number of other potential bases for a Will contest. We’ll pick up with those next time.