Do Texas Courts Enforce Forfeiture or “No Contest” Provisions in Wills?

Originally published by Paul Romano.

Since 2009, when the Texas legislature enacted what then was § 64 of the Probate Code – now Texas Estates Code § 254.005 (see Tex. Prop. Code § 112.038 for a similar provision related to contesting trusts) – many Texans have harbored a misconception: That so-called “forfeiture” or “no contest” clauses in wills are no longer enforceable. In truth, forfeiture (no contest) clauses still work to the degree that they ever did.

Be assured – in Texas, will contestants can still forfeit their right to inherit under the terms of a properly executed will. Current Texas Estates Code § 254.005 does not radically change the law. It essentially codifies what Texas common law already provided: Forfeiture or no contest clauses are enforceable unless the court determines that the person filing the will (or trust) contest did so in good faith and with just cause.

Who Can Contest a Texas Will?

In order to contest a will in Texas, the contesting party must be an “interested party.” Generally speaking, a party is “interested” when he or she has a pecuniary or justiciable interest that will be affected by the probate of the will. This normally includes spouses, children, and other heirs. It can also include a person or entity named as a beneficiary in an earlier document that would have provided a property interest at the testator’s death. Anyone seeking to contest a will has the burden of proving that he or she meets the definition of interested person.

The “Carrot and the Stick”

The purpose of the forfeiture clause is to discourage litigation. Using somewhat crass terms, the no contest clause operates like “a stick,” punishing the person who challenges the stated wishes of the maker of the will (the testator). The “stick” only works where there is a juicy carrot, where the contesting party has something to lose. Indeed, this is where many no contest clauses fail to achieve the desired result. If the will provides no meaningful bequest to the contesting party (e.g., “$1”), he or she has everything to gain, and virtually nothing to lose, in challenging the will.

Primary Grounds for Challenging a Will

While the following is not an exclusive list, in Texas, most will contests are based on one or more of the following grounds:

• Lack of testamentary capacity
• Improper execution
• Undue influence by another person
• Fraud
• Mistake

Note an important legal point: It isn’t enough to be unhappy with the terms of the loved one’s will.

Most Common Allegation: Undue Influence

While the particular details in each will contest are unique, a common thread in many will contests relates to an allegation that a person – sometimes a family member, sometimes not – exerted undue influence over the testator, particularly in the months just prior to the so-called “execution” of the will. The testator may have signed a will years before. He or she makes a new friend or becomes associated with some caregiver. Suddenly, a new will is signed and the new friend or caregiver receives a significant part of the estate. While the burden is on the person contesting the will, in many cases, a court will “see through” the situation and sustain the family member’s objections to the “new” will.

Contesting a Will Involves Complex Legal Issues

Contesting a will is typically a complex process that requires the efforts of one or more skilled and experienced estate attorneys. The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients. We have successfully represented parties contesting Texas wills, and we have assisted executors and trustees in defending against such contests. We also have the extensive litigation experience to take your case as far as necessary.

At Romano & Sumner, we pride ourselves not only upon our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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