41. Prospective client comes to your office with a copy of his 1. Prospective client comes to your office with a copy of his father’s new will.2. The will has been offered but not yet admitted to probate in County Court of La Salle County, Texas, by the testator’s longtime caregiver who assisted with paying bills, and who is a major beneficiary under the new will.3. The will was executed in the hospital without supervision by the drafting attorney shortly before the testator passed away from terminal cancer.4. A new estate planning attorney drafted the new will, greatly reducing the dispositive share that the prospective client would have received under the prior will, and the will contains a no contest clause.5. The client states that he does not recognize the signature on the will as his father’s normal signature.
5Does the potential contestant have a basis for a will contest?
6A. Can you attack the will based on improper execution? See if it meets TEX. PROB. CODE Section 59 “execution” requirements;See if it meets the common law requirements to be admitted to probate.
7Section 59: The Testator’s Signature Under Section 59, the will must be “signed by the testator in person or by another person for him, by his direction and in his presence.”Any “mark” (an “X”) made by the testator intended to be his signature satisfies this requirement.It is not required that the signature appear at the end of the will, as long as it appears somewhere in the body of the will.A will may also be signed by another person on behalf of the testator, but only if it is done in his presence and at his direction.It is not required that the testator sign the will in the witnesses’ presence.Examine the purported signature of the testator: is it the actual signature of the testator, or a possible forgery?
8Two Credible Witnesses’ Signature Under Section 59, the will, if not “wholly in the handwriting of the testator,” must be “attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator.”It is not required that the witnesses sign in each other’s presence.The only requirement is that each witness signs in the testator’s presence.The “conscious presence” rule: the testator must be in a position that he could have seen, by some slight physical exertion, the witness sign, even if the testator was not physically watching the witness sign.
9Did the testator understand the contents of the Will? Where ‘suspicious circumstances” exist at the time of execution of the will, the proponent may be required to show that the testator understood its contents when he signed it.Normally a testator is presumed to know and understand the contents of the will.
10Did the testator sign the will with “testamentary intent”? It is required that the testator intended to express his testamentary wishes in the particular instrument offered for probate.A document that discusses a will to be prepared is not itself a will, and does not satisfy the testamentary intent requirement.
11B. Can you attack the will based on lack of testamentary capacity? TEX. PROB. CODE Section 88(b)(1), requires proof that the testator was of “sound mind” when the will was executed;“Sound mind” has been interpreted to mean “testamentary capacity.”
12“Testamentary Capacity” Elements The testator must understand the business in which he is engaged;Understand the effect of his act in making the will;Know the general nature and extent of his property;Recognize his next of kin and the natural objects of his bounty;Have sufficient memory to collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relation to each other, and to form a reasonable judgment.
13Burden of proof on testamentary capacity If the purported will is contested prior to the time that it has been admitted to probate, the burden of proof is on the proponent. (Section 88(b));If the contest is filed after the will has been admitted to probate, the burden of proof as to testamentary capacity is on the contestant. (Section 93)
14C. Can you attack the will based upon an insane delusion? An “insane delusion” is:(1) the belief of supposed facts that do not exist;(2) the belief of supposed facts that no rational person would believe.
15“A person who is entirely capable of attending to his business affairs may nevertheless have his mind so warped by some false and unfounded belief that he is incapable of formulating a rational plan of testamentary disposition.”The terms of the will must have been directly influenced by the infirmities.
16Can you attack the will based upon undue influence? The contestant’s burden of proof:(1) the existence and exercise of an influence upon the testator;(2) that operated to subvert or overpower the testator’s mind at the time the will was executed;(3) such that the execution would not have occurred but for the undue influence.Proof may be accomplished by either direct evidence or circumstantial evidence.
17“The exercise of undue influence may be accomplished in many different ways, directly and forcibly, as at the point of a gun; but also by fraud, deceit, artifice and indirection; by subtle and devious, but none-the less forcible and effective means.” (In re Estate of Olsson)
18“Undue influence is a subtle thing and by its very nature usually involves an extended course of dealing and circumstances.” (Lowery v. Saunders)“Undue influence may be exercised through threats or fraud or the silent power of a strong mind over a weak one.” (Curry v. Curry)“The existence of undue influence is a question of fact, and from its very nature, like all fraudulent and vicious schemes, hides its features behind masks and operates in dark secret places and in covert ways, and proof of it must usually be by circumstantial rather than by direct testimony.” (Truelove v. Truelove)
19Factors to be considered in determining the existence of undue influence are as follows:
201. The nature and type of relationship existing between the 1. The nature and type of relationship existing between the testator, the contestants and the parties accused of asserting such influence;2. The opportunities existing for the exertion of the type of influence or deception possessed or employed;3. The circumstances surrounding the drafting and execution of the agreement;4. The existence of a fraudulent motive;5. Whether there has been a habitual subjection of the testator to the control of another;6. The state of the testator’s mind at the time of the execution of the testament;
217. The testator’s mental or physical incapacity to resist or the 7. The testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted;8. The words and acts of the testator;9. Weakness of mind and body of the testator whether produced by infirmities or age or by disease or otherwise;10. Whether the testament executed is unnatural in terms of disposition of property;11. Whether the beneficiary participated in the preparation or execution of the instrument.
22Can you attack a will because the proponent has only Can you attack a will because the proponent has only offered a copy of the will?If the proponent cannot locate the original of such will, there is a rebuttable presumption that it has been revoked if it was last seen in the testator’s possession.The proponent of such will not produced in court must prove the cause of its nonproduction, and that it cannot by any reasonable diligence be produced. (Section 85)The contents of such will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.
23In addition to proving the contents of the lost will, the proponent must also prove: The testator signed the will;The identity and age of the attesting witnesses;Whether they were credible witnesses; andWhether the witnesses signed the will in the presence of the testator.
24Does the potential contestant have standing to contest the will?
25A. Standing is Jurisdictional Whether or not your potential client has “standing” to file the will contest is a matter of subject matter jurisdiction which cannot be waived.It may be raised at any time, including on appeal.The party questioning the contestant’s standing should affirmatively plead the lack of the contestant’s standing and set it for hearing well in advance of the trial.The contest to a contestant’s standing is brought by the proponent in a “Motion in Limine”, not to be confused with a traditional motion in limine commonly used to prevent the introduction of evidence at trial.
26B. Determine if the Contestant is an “Interested Person” Any person “interested in an estate” may file an “opposition” before the will is admitted to probate. (Section 10)For contests filed after the will has been admitted to probate, the contestant’s standing is also defined as “any interested person.” (Section 93)
27Probate Code Section 3(R) defines “interested person” as follows: “heirs, devisees, spouses, creditors, or any others having a property right in, or claims against, the estate being administered; and anyone interested in the welfare of a minor or incompetent ward.”
28C. Determine if there are any potential challenges to the C. Determine if there are any potential challenges to the contestant’s standing.Although a contestant may appear to have standing under a prior will or by intestacy, there are several possible bases to defeat that standing.
291. EstoppelA contestant may be “estopped” from contesting a will due to his acceptance of benefits under that will.A contestant is not estopped unless he has received benefits to which he would not be entitled under either will or even under the laws of intestacy.Res JudicataA potential contestant may lack standing due to the applicability of res judicata where his siblings or other heirs or devisees of the same class have already litigated the contest.
303. Assignments and Disclaimers A contestant who has assigned to another person his interest “under a will” or “by inheritance” has no further interest in the estate and loses their standing to contest. (Section 37B)A contestant who has “disclaimed” their interest in the decedent’s estate loses their standing. (Section 37A)
31Determine where the will contest should be filed.
32JurisdictionFor a will that has already been offered for probate, the contest should be filed in the court in which that application is pending, unless it was filed in court that lacks jurisdiction.All probate proceedings must be filed and heard in a court exercising original probate jurisdiction. (Section 4A)
33Texas Probate Code Section 4C(a) In smaller counties where there is no statutory probate court or county court at law, the county court has original jurisdiction over probate matters.A contestant has the option of filing a motion for the appointment of a statutory probate judge to hear the contest if he is able to file this prior to the matter being transferred to the district court.A judge generally unfamiliar with will contests could be replaced with a more experienced statutory probate judge.
34Texas Probate Code Section 4C(b) In counties which do not have a statutory probate court, but in which there is a county court at law exercising probate jurisdiction, the county court and the county court at law have current jurisdiction over probate matters.A contest filed pending in the county court may be transferred to the county court at law.
35Texas Probate Code Section 4C(c) and 4H In those counties which have statutory probate courts, which consists of ten larger Texas counties, which in the north Texas area includes Dallas County, Tarrant county, Collin County, and Denton County, the statutory probate court has exclusive jurisdiction over all probate proceedings, including will contests.
36Judgments entered in any contest filed in a court that lacks jurisdiction are void, and can be set aside.If the proponent of the will being contested has filed his application in a court which lacks jurisdiction, the contestant should file a plea in abatement, and either force the proponent to re-file in a court with jurisdiction, or file an original proceeding of his own in the proper court.
37Determine where the proper venue is for filing the will contest. Venue is established by the county where the decedent resided, if the decedent had a domicile or fixed place of residence. (Section 6)If an estate is pending in a statutory probate court, that statutory probate court is the proper venue for filing the opposition or contest. (Section 6A)If it appears to the court at any time before the final decree in a probate proceeding that the proceeding was commenced in a court which did not have priority of venue, the court shall, on the application of any interested person, transfer the proceeding to the proper county.If the question of venue is not raised before the finality of the decree, such decree is not affected by any error in venue.
38Determine the effect of any no contest clause in the will being contested.
39Section 64 provides that “a provision in a will that would cause a forfeiture of or void a devise or provision in favor of a person for bringing any court action, including contesting a will, is unenforceable if:(1) Just cause existed for bring the action; and(2) The action was brought and maintained in good faith.”The contestant needs to be careful to plead in their contest that they have brought the contest with just cause, and the action is being brought and maintained in good faith. It will also be necessary to obtain a finding from the trier of fact, if the no contest clause is plead by the proponent.
40Prepare the proper pleading to contest the will.
41A. General Pleading Requirements Prior Will - If a part of the will contest the client is seeking to have admitted to probate an earlier will, an application for probate of that earlier will should be filed as a part of the contest, and should include all of the allegations necessary to have such will admitted to probate. (Section 81)Copy of Will - If only a copy of the prior will can be located, the application will also need to contain the allegations contained in Section 85 of the Probate Code to prove up the copy of the prior will.
42Necessary Parties“An institution of higher education as defined by Section , education Code, a private institution of higher education, or a charitable organization.” (Section 10A)“No person need be cited or otherwise given notice except in situations in which this Code expressly provides for citation or the giving of notice…”(Section 33(a))
43Pleading for Recovery of Attorney’s Fees Attorney’s fees are only recoverable by a contestant who is offering a competing will for probate.The contestant should specifically plead for attorney’s fees under Section 243 and request a finding that they offered the will for probate “in good faith, and with just cause.”Even if unsuccessful in the contest, a party is entitled to recover their reasonable and necessary attorney’s fees with a finding at trial that they offered their will in “good faith” and with “just cause.” (Section 243)Attorney’s fees in will contests cannot be recovered from the opposing parties. (Zapalac v. Cain; Schindler v. Schindler)
44Consider Including a Request for a Temporary Administrator Consider Including a Request for a Temporary Administrator. (Section 131A, or 132)A temporary administrator may enable the contestant to obtain records, including financial and medical records.A temporary administrator safeguards the estate assets pending the contest.A temporary administrator only has the powers specifically listed in the order appointing them.
45Make sure the required citation and notice is issued.
46General Rules – Sections 33 and 34 If the contestant is also offering a will for probate, he should be sure that a notice is properly posted and returned on his application prior to the trial date.Personal service (or a waiver of citation) should be accomplished as to education and charitable organizations which are necessary parties. (Section 10A)The citation returns and/or waivers should all be filed with the court prior to the trial date.
48At a minimum, a contestant needs to obtain certain basic documents and take some basic depositions in order to effectively present their contest. Among the basic documents which the contestant should seek by way of a records deposition or a subpoena (accompanied by a custodian of the records affidavit) would be the following:
49The Estate Planner’s file: The entire estate planning file of the drafting attorney of the will being contested is essential. The file may show:Who was communicating with the estate planner;Evidence of the proponent’s involvement in the planning and execution process;Evidence of any mistakes or provisions in the will which were not documented in the file;The estate planner did not discuss, or at a minimum did not document the testator’s knowledge as to the natural objects of his bounty, the general nature and extend of his estate, his true dispositive plan, and the reasons for the new will.If offering a prior will, contestant should obtain the entire estate planning file of the previous planner, if there was one.
50B. Medical Records:The contestant should obtain all medical records which may assist in establishing mental capacity and physical illnesses. The medical records sought should include:Medication the testator was on at the time of execution of the will;Any hospital records and the separate records of any treating physicians;Twelve to twenty-four month period prior to the execution of the will, together with all post-will execution medical records.These records will not only be essential as exhibits at trial, but will also be essential for use by the contestant’s medical experts.
51C. Business Records:The contestant should obtain any business records of the decedent for at least a year prior to the execution of the contested will. This would include:Bank records, brokerage account records, and any other business records which might reflect whether or not the testator was capable of understanding his financial affairs;Records which may reflect mistakes or delinquencies on the testator’s bills, or the testator’s need for assistance with transactions;Any account signature cards which provided for right of survivorship or pay on death accounts which passed contrary to the terms of proponent’s will or which benefited the proponent.
52D. Records of the Proponent: Any powers of attorney;Documents reflecting any gifts or transfers to the proponent from the testator;Any payments to the proponent by the testator.
53Depositions:The contestant at a minimum should take the following depositions:1. The Proponent2. Witnesses and Notary3. Estate Planning Attorney4. Treating Physicians, Nurses, and Caregivers
54The Proponent:What will the proponent attempt to testify to at trial;Any involvement in the estate planning process or financial affairs of the testator;Any knowledge which they have regarding any purported statements by the testator as to his testamentary intentions and whether those statements cane be corroborated;Any facts of which the proponent is aware regarding the estate planning process, the execution of the will, the treating physicians and medical history of the testator.
552. Witnesses and Notary:Discover the mental state of the testator;The adequacy of the explanation of the will to the testator;Whether there was any discussion in their presence as to the natural objects of the testator’s bounty and the general nature and extend of his property;Mistakes or improperties in the planning process;Any involvement of the proponent in the planning process to assist in establishing an undue influence claim.
56Estate Planning Attorney: The planning process;The involvement of the will proponent in the planning process;Conversations which the planning attorney had with the testator;Meetings the planning attorney had with the testator;Whether the testator saw the purported will in advance of signing it;Whether the attorney adequately explored the elements of testamentary capacity with the testator;Other matters relating to capacity or undue influence.
57Treating Physicians, Nurses and Caregivers: Treatment around the time of execution of the will or from the onset of any illness through the testator’s death;Whether the proponent has listed them as a witness;
58F. Trial Witnesses:The contestant will need fact witnesses to support their claims regarding lack of testamentary capacity and undue influence. Potential fact witnesses which should be considered include:1. Close Friends;2. Business Associates;3. Neighbors;4. Sitters;5. Prior Estate Planning Attorney;6. Treating Physician.
59Close Friends:Evidence of any mental processing problems;Examples of control, pressure or undue influence by the will proponent;Any knowledge of the previous testamentary wishes of the testator.
60Business Associates:Involvement with financial affairs of the testator;Mental processing difficulties which they observed in the testator around the time of the will;Any prior knowledge of any testamentary wishes;Any observations regarding the proponent’s influence over the testator.
61Neighbors:Conversations they may have had with the testator around the time of the planning and execution of the will;Observations as to the testator’s capacity;Observations of the proponent and the proponent’s control over the testator.
62Sitters:Observations of the testator’s mental processing difficulties in the time period surrounding the execution of the will;Any influence which the proponent may have had over the testator;Whether or not regular records were kept of their observations regarding the testator.
63Prior Estate Planning Attorney: Establish the true testamentary intentions of the testator as reflected in a prior will;Testify regarding any shoddy estate planning practices of the subsequent planner.
64Treating Physicians:Determine whether the treating physician may be helpful;If not helpful, contestant should prepare to cross-examine the treating physician, and the records should be reviewed by the forensic psychiatrist used by contestant.
65G. Expert Witnesses:In order to make an effective presentation of the contest, the contestant will need to retain certain expert witnesses to help establish lack of testamentary capacity and the susceptibility of and evidence of undue influence. These expert witnesses could include the following:1. Forensic Psychiatrist;2. Handwriting Analyst;3. Forensic Accountant;4. Estate Planner.
66Forensic Psychiatrist: A forensic psychiatrist is essential in reviewing the available medical records and evidence reflecting the mental capacity and susceptibility to undue influence of the testator. The forensic psychiatrist should be provided with all medical records which are obtained, together with depositions taken of key witnesses from which they can form their opinion.
672. Handwriting Analyst:If there is a question as to the bona fides of the signature of the testator or of the subscribing witnesses, a handwriting analyst should be retained to review the signatures. The handwriting analyst will need other examples of the testator’s signatures, preferably in the same time period as the purported will was executed.
683. Forensic Accountant:If the proponent of the will was also involved in the testator’s finances around the relevant time period, a forensic accountant can be helpful in testifying as to financial improprieties engaged in by the proponent, which is useful in establishing an undue influence claim.
694. Estate Planner:An attorney who is experienced, and preferably board certified, in estate planning can be utilized as an expert witness to opine on the sufficiency of the estate planning process, irregularities in the will, and whether the drafting attorney of the will being contested failed to take proper steps to protect the testator from any undue influence.
71Pursuant to Texas Probate Code Section 21, any party is entitled to request a trial by jury in a will contest. The conventional wisdom is that a contestant will normally seek a trial by jury. Counsel should consider:Whether or not the contestant and other parties aligned with the contestant are effective and sympathetic witnesses;The quality of the estate planning process;The medical evidence.
72JURY TRIAL v. BENCH TRIAL Contestants’ Success RatesJury Trial Bench Trial56% Lack of Capacity %67% Undue Influence %
74Dead Man’s StatuteTEX R. EVID. 601(b), frequently referred to as “the dead man’s status” provides the following:“In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement is corroborated or unless the witness is call at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement…”
75Lay Witness Opinions as to Capacity of Testator A lay witness is not allowed to testify that the testator had “testamentary capacity”.A lay witness is allowed to express their opinion on the testator’s mental condition of it is shown that they had sufficient personal contacts to form an opinion.One way to accomplish this is to elicit examples of the testator’s difficulty in mental processing, and then ask the witness top opine on the testator’s abilities as to each one of the elements of testamentary capacity.
76Expert Witness Opinions as to Capacity of Testator A contestant should utilize the services of a forensic psychiatrist at trial to opine as to the testator’s capacity, particularly if the testator’s treating physician is not helpful to the contestant. The testimony of an expert witness such as a doctor or psychiatrist, does not conclusively establish the capacity issue as a matter of law. The trier of fact is free to weigh that testimony along with contradictory lay witness testimony, and decide which evidence to follow.
77Hearsay and the Testator TEX R. EVID. 803(3) is frequently invoked to overcome hearsay objections to statements made by a testator, which qualify under this exception as evidence of the testator’s state of mind, and his intent, plan and motive as to his estate plan.Attorney-Client PrivilegeUnder TEX R. EVID. 503(d)(2) communications “relevant to an issue between the parties who claim through the same deceased client, regardless of whether the claims are by testator or intestate succession, or by inter vivos transactions” are not subject to privilege.
79If the contested will was previously admitted to probate, then the Contestant has the right to open and close.If the contested will as not previously admitted to probate, then the proponent of the latest will has the right to open and close.
81Prospective client comes to your office with a copy of his father’s new will. The will has been offered but not yet admitted to probate in County Court of La Salle County, Texas, by the testator’s longtime caregiver who assisted with paying bills, and who is a major beneficiary under the new will.The will was executed in the hospital without supervision by the drafting attorney shortly before the testator passed away from terminal cancer.With a different estate planning attorney from the one who drafted the previous will, the new will greatly reduced the dispositive share that the prospective client would have received, and the will contains a no contest clause.The client states that he does not recognize the signature on the will as his father’s normal signature.
82The following is a possible analysis of the contestant’s case:
84Improper Execution:The signature does not appear to be the testator’s normal signature – which may give rise to a forgery claim.The will execution was not supervised by the drafting attorney.The witnesses to the will and the notary will need to be questioned as to whether the will was properly executed.Suspicious circumstances existed at the time of the execution of the will.
85Lack of Testamentary Capacity: The will was executed in the hospital while the testator was suffering from terminal cancer shortly before passing away – raising a question of whether he had sufficient mental ability.Medical records will be important, including the records as to medications which were being administered at the time of the execution of the will, and the testator’s neurological status being documented by the doctors and nurses.
86Undue Influence:A new estate planner was used rather than the drafter of the prior will, and was known to and retained by the proponent of the new will.The close relationship which the contestant, the testator’s son, historically had with his father.The participation of the caregiver in the drafting and execution process.
87Undue Influence:The caregiver’s physical control over the testator and access to the testator around the time of the planning and execution.The testator’s physical weakness and inability to resist influence being exerted.The unnatural disposition – the beneficiary participating in the preparation/execution of the will, the drafting attorney not supervising the execution, and the proponent is a non-relative.
88Original or Copy:The contestant’s counsel should also check the will which has been offered for probate in the court’s file to determine whether or not it is in fact an original and not a photocopy of an original executed will.If the will is a copy, the proponent will have to prove the cause of the non-production of the original, and overcome the presumption that it was revoked. (Section 85)
90It appears that the contestant has standing to contest It appears that the contestant has standing to contest the will, in that:The contestant is a beneficiary under the prior willContestant would be an heir at law, in the event both wills were denied probateBecause the new will has not been admitted to probate, his standing could not be lost by estoppel or res judicata, and could only be lost If he had assigned or disclaimed his interest in his father’s estate previously.
91C. Determine Where the Will Contest should be Filed
92It appears that the purported will was filed in the proper court, being the County Court of La Salle County, Texas, the county where the testator domiciled at the time of his death.As a county having no statutory probate court or county court at law, you should immediately file a motion to appoint a statutory probate judge, with knowledge and experience with the Probate Code and procedures, to hear the contest and preside over the case.
93D. Determine the Effect of the No Contest Clause
94The contestant will have to advised that he will be in danger of losing his bequest under the new will by filing a will contest.If he obtains a finding of just cause for bringing the action and that the action was brought in good faith, he would not forfeit this bequest under the new will in the event he were to lose the will contest.
96The contestant should file an opposition to probate of the purported new will and should also file for admission to probate of the prior will.If the prior will is a copy, the pleading should contain all allegations required under Probate Code Sections 81 and Section 85, to prove up a copy of a will and have it admitted to probate.The contestant should consider including as parties to the contest any other beneficiaries named in the new will.Because a prior will is being offered for probate, contestant should be certain to plead for his attorney’s fees, and request a finding that he has offered the prior will in good faith and with just cause.
97The contestant should further include in his opposition a request for the appointment of a temporary administrator to take control of all of his father’s assets pending the contest so that they are not depleted during the contest, particularly if the proponent has physical control of some or all of the assets.
101The contestant will need to subpoena or take a records deposition as to: Estate planning file of the new attorney;Medical records and physician’s records;Testator’s bank records and brokerage records;Proponent’s records showing any power of attorney, any gifts, transfers, or other transactions with the decedent.
102Contestant should also consider deposing: The proponent;The estate planning attorney;The witnesses and notary to the new will;Any persons listed with knowledge of relevant facts;Any treating physicians, nurses, or other caregivers.
104Without further information, it is too early to make the call as to whether or not the contestant should request a jury. However, based upon the unnatural disposition and the failure of the estate planning attorney to supervise the execution, the case should have appeal both in front of a judge or in front of a jury.
108The contestant has a viable basis for the contest. The contestant has standing to bring the contest.An opposition and application to probate the prior will needs to be filed.The assignment of a statutory judge and the appointment of a temporary administrator should be requested immediately.
1098401 N. Central Expressway, Ste. 210 P. Keith Staubus8401 N. Central Expressway, Ste. 210Dallas, TexasTel: (214)Fax: (214)