Unfortunately, Will and Trust contests are becoming more and more prevalent. As the likelihood of litigation around estate planning continues to grow, so does our approach to ensuring your documents are honored. First, the most common grounds for attacking Wills and Trusts are (1) lack of capacity to enter into the Will or Trust and (2) undue influence by a party or parties.
In order to have testamentary capacity under Texas law, the person signing the documents must have the ability to know and understand several key elements:
- the business in which he was engaged;
- the effect of the act of making a Will;
- the general nature and extent of his property; and
- who he is giving his property to and how it is being disposed.
At Dismuke & Waters, P.C., if we have any concern about your ability to satisfy the list above, we employ several strategies to reduce the likelihood of success of a contest on the basis of lack of capacity and/or to dissuade any such contest. For example, we recommend that you visit your physician prior to and close in time to the signing of your Will or Trust, and we assist your physician in preparing a letter regarding your capacity to enter into a Will or Trust.
The second most common ground for a Will or Trust contest is undue influence. Under Texas law, undue influence generally requires that the person seeking to sign the document is being influenced by another person such that their intent is being overpowered and that they would not have signed the document without that influence.
At Dismuke & Waters, P.C., if we have any concern about an undue influence affecting a client and/or there is a strong likelihood that your Will or Trust may be contested due to many factors we look for that have previously led to such contests, including but not limited to blended families, late in life marriages, substantial separate property of one or both spouses or what we believe would appear to be an unnatural disposition of your estate, we recommend that several precautionary measures are employed to reduce the likelihood of success of a contest on the basis of undue influence.
If you are concerned about whether your Will or Trust will be contested or believe that your loved one or friend’s estate planning documents were executed without capacity or as a result of undue influence, we would encourage you to call or schedule an appointment to visit with us to discuss your options.