Contesting a will is a complex legal process that may center on the testator’s capacity, any technical defects in the will and/or whether the testator was under any duress.
The Importance of Strategic Timing
A critical factor in a will contest is whether the challenge is filed before or after the will has been admitted to probate. If you file a contest before the court admits the will, the "burden of proof" stays with the person applying to probate the will. They must prove the document is valid.
However, if you wait until after the will has been admitted to probate, the burden shifts to the contestant. In this scenario, you must prove the will is invalid. Additionally, Texas Estates Code § 256.204 establishes a strict two-year statute of limitations for filing a contest after a will has been admitted to probate.
Filing the Legal Contest
Mechanically, the process begins by filing a formal "contest to the will" under the Texas Estates Code. If a probate case is already open and the will has been deposited with the county clerk, the contestant (the plaintiff) files their opposition in that existing matter. Because the burden of proof can shift after a will is admitted, catching the process early is essential.
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