Will Contests
The loss of a family member is one of the most traumatic experiences in life. The grieving process can be all consuming and the death of a loved one takes time to process. That time shouldn’t be overshadowed by the discovery that the departed had been defrauded, unduly influenced, or manipulated into making decisions regarding their estate, assets, or will. This discovery is particularly painful if the defrauder, influencer, or manipulator is a member of your own family.
A will contest is a lawsuit challenging the enforceability of a will. Typically, will contests are based on legal claims that the decedent lacked the required mental capacity to execute the will in the first place, or that she was the victim of undue influence. Sometimes, wills can be attacked for failure to adhere to legal requirements, and for other reasons.
We used to say someone was of “sound mind” when talking about legal capacity to make a will. The legal test in Texas is “testamentary capacity.”
What is Testamentary capacity?
Texas courts look at whether the person at the time of the execution of the will had sufficient mental ability to: (1) understand the business in which he was engaged (the act of making a will); (2) understand the effect of his act in making the will; (3) understand the general nature and extent of his property; (4) know his next of kin and natural objects of his bounty (grandkids, etc.) and their claims upon him; and (5) 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 be able to form a reasonable judgment as to them.
It’s a complicated test, often needing testimony from experts such as forensic psychiatrists to help resolve. We work with some of the best in the field.
Undue influence is another legal claim used to invalidate a will. Generally, undue influence is defined as exercising influence or dominion that destroys the free will of the testator and substitutes the will of the influencer. Stated differently, it means the use of influence – force, intimidation, duress, fear, deception, psychological manipulation – to cause the maker of a will to execute one that is contrary to his or her wishes for property distribution upon death.
One of the critical stages of a will contest trial is jury selection. Murray W. Camp has been recognized for his expertise in this area, having been selected as a faculty member of the National Academy of Continuing Legal Education and having presented multiple seminars in this area.