Will Contests in Texas – A Four-Part Series

Next week I am starting a new four-part series regarding Will Contests in Texas. I get numerous calls every week from potential clients who, after explaining their situation to me, ask if they have any grounds to contest a Will. When it quickly became apparent that the same questions were arising regularly, I decided this subject would make a good blog topic.

My goal is to explain exactly what a Texas Will contest entails, what grounds are available for such a contest, and what issues regularly arise in such proceedings. In the following days, I will lay out what actual grounds are available for a such contests, and hopefully clear up some of the misconceptions out there about what can and cannot be contested when dealing with Texas Wills.

As a primer, there are basically two base groupings that all contests fall into. The first deals with the person writing the Will, and the second deals with the document itself. Therefore, starting Monday, we will look at the following issues surrounding Will Contests:

1. What are the statutory requirements for a valid Will in Texas?

2. What are the statutory requirements for a valid Will execution in Texas?

3. What does “testamentary capacity” mean?

4. What is an “insane delusion” and what constitutes “undue influence” in the drafting of a Will?

So tune in tomorrow as we delve into the statutory requirements for a properly drafted Texas Will.

This Week in Probate and Guardianship Appeals

Case: Kappus v. Kappus
Court: Supreme Court of Texas

This case deals with the removal of an independent executor because of an alleged conflict of interest.

In a fairly broad sweeping opinion, the Supreme Court ruled that because a conflict of interest is not listed in the probate code among the several grounds as conditions for removal, it is not a valid reason for removal.

The Court noted that the grounds to remove an independent executor post-appointment are different than those to disqualify an executor pre-appointment. The evidence in the case showed that the dispute was a good-faith disagreement between the executor and the contestant as to how to split the value of improvements made to land co-owned by the Estate and the Independent Executor. The record contained no evidence of dishonesty or misappropriation on the Executor’s part.

The Court concluded that a good-faith disagreement over the Executor’s ownership share in the estate is not enough, standing alone, to require removal under section 149C. The estate was small; there was no actual harm to the Estate since the trial court resolved the percentage-of-ownership issue; the Independent Executor asserted his claim in good faith; and the Testator knew of the Independent Executor’s co-ownership in the property when he named him as such in his will. Therefore, without more, the Court was unwilling to remove the Independent Executor based on a potential conflict of interest.

What does this mean for you? You need to be vigilant in attacking conflicts of interest prior to appointment. If you see potential danger ahead, do not wait until it’s too late. Contact us today and let us help you to ensure that your matter is handled properly from the start.