Most people never get around to writing a will. If they do, it’s often not until very late in life, at the point when most folks realize they can’t afford to leave their family entangled in probate. These last-minute wills sometimes work, but they could pose significant risks for your heirs and estate—especially if somebody has good reason to believe that you didn’t meet the legal requirements for writing a will.
You can’t predict what happens in probate, but you can take definitive steps to ensure that your estate plan is strong enough to withstand bad-faith claims and expensive lawsuits. If you have concerns about how testamentary capacity or undue influence could affect your estate, read on or contact Ross & Shoalmire today to speak to an Estate Planning Lawyer and schedule your no-obligation consultation.
Understanding Testamentary Capacity and Undue Influence
Every state sets its own rules for who can and can’t create a last will and testament.
In Texas and Arkansas, the requirements for executing a will are straightforward and fairly similar. As a general rule, anyone who is age 18 or over has the right to make decisions about their estate, such as establishing a trust or writing a will. You may need to double-check that your documents meet your state’s filing criteria, but you won’t have to appear in court to validate your will.
There is, however, a caveat.
If you live in Texas or Arkansas, the state will only consider your will valid if you wrote it when you could make an informed, independent decision regarding your estate, heirs, and assets. In other words, you must be “of sound mind” when writing or amending your will. Furthermore, your estate plan needs to reflect your desires, not a list of last-minute changes demanded by a friend or family member trying to take advantage of your age and health.
In either case, if you are sick or injured or simply in cognitive decline at the time you decide to make an estate plan, any party with standing—from your heirs to long-forgotten creditors —could file a lawsuit against your estate if they have evidence to suggest that you either lacked testamentary capacity or were subjected to undue influence. If they win, your last will and testament could be outright invalidated, thrusting your estate and family into intestate succession.
Here’s a brief overview of what constitutes:
Testamentary Capacity
The term “testamentary capacity” is the legal way of saying that somebody meets all of the requirements necessary to write a last will and testament. Aside from being an adult, you must also be of sound mind. This typically means being capable of understanding:
- The nature and type of assets that you own
- The nature of your relationship with close relatives and designated heirs
- That you are writing a will, and that your will directs the distribution of assets
If you do not meet these criteria, whether because you have been seriously injured in an accident or because you are suffering from Alzheimer’s disease or dementia, you probably won’t have the testamentary capacity needed to execute a will.
Proving that somebody lacked testamentary capacity can be difficult, but it isn’t impossible.
And, even if a challenger can’t prove their claims, your estate will still be responsible for funding its own defense—potentially costing your heirs a big part of their inheritances.
Undue Influence
An undue influence exists whenever another person’s words or actions persuade you to make decisions that you wouldn’t have made without coercion.
Both Texas and Arkansas recognize undue influence as an invalidating factor for estate plans, though you might not be able to find a precise definition of what constitutes “undue influence” in either state. This is because the term undue influence, on the whole, is vague and could entail anything from threats of physical violence to an heir subtly taking advantage of an ageing relative.
In Texas, proving the existence of undue influence usually necessitates establishing:
- The existence and exertion of an influence over the person writing the will, also known as the “testator.”
- The influence subverted or overpowered the testator’s ability to make independent decisions.
- If not for the influence, the testator would not have executed or amended the will.
Proving undue influence is usually difficult, as the party alleging undue influence must prove their claims. However, under certain, limited circumstances, the court may presume the existence of an undue influence. This typically occurs if a person in a position of authority—like a parent, guardian, or estate executor—is believed to have played an outsized role in the will’s creation or execution.
How Accusations of Testamentary Capacity or Undue Influence Could Upend Your Estate Plan
If your estate plan is based around a last will and testament, many of your assets will have to pass through probate before going to your designated heirs. Probate is a public, court-monitored process that involves many different steps, most of which will be guided by your executor.
During probate, your executor will be responsible for tasks including:
- Proving your will
- Sending out notices of probate to interested parties
- Tracking down, managing, and inventorying your assets
- Reviewing creditor claims
- Defending the estate from legal challenges
After probate begins, any interested party may have standing to contest your estate and the terms of your will. In most cases, an interested party is anyone who has a financial or legal interest in the outcome of your estate’s administration. This includes not only your designated heirs but also creditors and pretermitted children, too.
Interested parties can’t sue without good reason, but if they have evidence to suggest that your will was impacted by factors such as a lack of testamentary capacity or undue influence, they could file a lawsuit against your estate. The burden of proof in these types of claims is high, though not insurmountable. Successful lawsuits can force the probate court to work around your wishes, striking out problematic provisions or even invalidating your estate plan.
If your estate plan is invalidated, in part or in full, the invalidated portions will typically be subject to your state’s intestacy laws. Intestacy laws differ in Texas and Arkansas, but they tend to favor close living relatives to the detriment of almost everyone else. In an intestate succession, anyone who isn’t close family loses out—and even close family won’t have any say in what they get or how your assets should be divided.
Protecting Your Estate from Lawsuits and Liabilities
Your estate plan could fall to pieces if somebody else tells the probate court that you weren’t in your right mind when you executed your will. Even failed lawsuits can drain estate resources, leaving little for your heirs. Fortunately, you don’t have to accept uncertainty in place of security.
Ross & Shoalmire’s experienced team of Estate Planning Lawyers has spent years helping families in Texarkana, Upper East Texas, and Southwest Arkansas. Every estate is unique, but we could help you protect yours by:
- Creating an estate plan that fits your needs
- Ensuring that your will, trust, and other estate planning documents are valid under your state’s laws
- Establishing a strong, structured, and conditioned trust that keeps your assets out of probate
- Identifying potential threats to your estate—and finding the best way to minimize them
- Defending your estate against frivolous challenges and creditor claims
