If you are going through the trouble of creating a will, then you want to make absolutely sure that the will is going to be upheld in court when the time comes.
Sadly, there are countless Texas residents who have made mistakes drafting their wills, and their families have paid the price with expensive and time-consuming will litigation.
Here are three of the most common reasons wills are challenged (and how to avoid them):
Capacity or intent is called into question
In order for a will to be accepted in Texas, the person creating the will must have legal capacity as well as testamentary capacity. Legal capacity means that the person must be 18 or older, or be married or a member of the armed forces.
Testamentary capacity means that the person must be of "sound mind" and fully understand what he or she is doing by creating the will.
Wills are often challenged by parties who believe that the will's creator was not of sound mind when it was executed, perhaps due to old age or illnesses such as dementia. Or parties may argue that the will was executed based on fraud, duress or undue influence instead of intent.
The best way to avoid will challenges based on capacity or intent is to make sure to execute a will while you are healthy.
Multiple wills exist
When a person has executed multiple wills, it can cause a lot of confusion for the executor and the court. This is especially true if those who have an interest in the will disagree over which version should be used.
Simply stated, newer wills trump older wills, which is why including the date on a will is so important. However, older wills should also be destroyed, and a clause in the new will about replacing the old will is a good idea to help clarify.
Formalities are not met
In order for a will to be valid in Texas it must meet certain formalities, depending on the type of will that is being created: an attested will or a holographic will.
- An attested will is the most common type of will. It must be in writing, signed by the person creating it (or another person at his or her direction) and signed by at least two witnesses.
- A holographic will (also known as a handwritten will) must be entirely in the will creator's handwriting and signed by him or her.
Any will that doesn't meet these formalities can be challenged. In Texas, there is the option of creating a self-proving affidavit to go along with the will, which is signed by the person making the will as well as two witnesses before a notary public.
Of course, the best way to make sure that will formalities are met -- and to avoid the other issues that lead to wills being challenged -- is by getting an experienced lawyer to draft it for you. Keep reading for more information on creating a dependable roadmap for your family.