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Dallas Lawyers for Contesting a Will Due to Lack of Testamentary Capacity

If you believe your family member wasn’t of sound mind when they created their will, you could pursue legal action to contest it. At Staubus and Randall, our team of estate litigation attorneys has decades of experience helping our clients challenge the validity of a relative’s will.

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The person creating an estate plan must have testamentary capacity when they write the will for it to be valid. “Testamentary capacity” means they have the mental ability to understand their actions and the consequences of these actions when they write a will. They must also know their assets and who will receive them upon their death.

Families often encounter conflict when one or multiple people believe the will is invalid. Lack of testamentary capacity is a common ground for challenging someone’s will. Taking this type of case to court requires a probate judge to review the circumstances and determine whether they can validate the deceased’s will.

With over 100 years of combined legal experience, Staubus and Randall knows how to handle will contests effectively. We use our knowledge of state laws and legal procedures to create a strategy to try to reach a favorable outcome. When you hire us, we will work hard to meet your needs and remain by your side in the fight to ensure the proper administration of your loved one’s estate.

Contact the Dallas estate litigation lawyers team of Staubus and Randall at 214-691-3411 today for your free consultation. We’ll discuss our services and how we can help you and your family.

The Role of Testamentary Capacity in Creating a Will

The testator, the person executing a will, must be in a state of mental competency at the time the will is made. Only then can the executor legally administer the estate as outlined by the deceased’s final wishes. A valid will can only be created if the testator is of sound mind at the time. That means they have testamentary capacity.

Testamentary capacity means the testator:

  • Understands the actions they’re taking
  • Understands the effects of creating a will
  • Understands the nature of the property in their estate
  • Identifies the heirs and beneficiaries entitled to the assets

It’s crucial to understand that lack of testamentary capacity doesn’t necessarily mean the testator is an older adult or suffers from a serious medical problem. Even if someone has dementia, the will they create could be legally enforceable as long as they were lucid at the time of execution.

lack of testamentary capacityYou can only prove a lack of testamentary capacity if the testator did not understand what they were doing while creating the will. Examples include:

  • They didn’t know the document they signed was a will
  • They had no comprehension of the assets in their estate
  • They couldn’t identify their beneficiaries, heirs, or next of kin
  • They had no knowledge of who would receive the property once they died
  • They couldn’t understand the activity of executing a will and the effects it would have

If you want to contest your family member’s will or fight against another person challenging the will’s validity, contact Staubus and Randall right now. You should have a skilled and experienced legal team in your corner to help you fight to be sure your loved one’s intentions are carried out.

Who Can Pursue a Will Contest in Texas?

Texas Estates Code 22.018 permits any interested person to challenge a will. An interested person includes the parties below:

  • Devisee, creditor, heir, spouse, or another person with rights to or a claim against the administration of an estate; and
  • Anyone interested in an incapacitated person’s welfare, including a minor child.

If you are an interested person and have evidence to prove a lack of testamentary capacity, you could file your case with the probate court. However, you must follow a strict timeframe to challenge the validity of your family member’s will.

Statute of Limitations for a Will Contest

According to Texas Estates Code 256.204, an interested person can initiate a lawsuit to contest the validity of a will any time during the two years from the date the court admits the will to probate. If you wait longer than that, your lawsuit will not be permitted.

A probate judge will review the will to determine its validity. If they validate it, it will be a challenge to proceed with legal action to fight against the administration of the estate.

Instead of waiting for the will to enter probate, you should file your lawsuit as soon as possible after your relative’s death. Even though you’re grieving and trying to cope with your loss, if you realize something is wrong with the will, you could file a lawsuit. However, pursuing legal action before a judge validates the will could benefit your case, so you should file quickly.

Why Hire Staubus and Randall?

daughter helping mother w/ willAt Staubus and Randall, our Dallas estate litigation lawyers understand the uphill battle you face. A will contest can be a time-consuming legal proceeding. Whether you’re challenging a will or fighting against someone else’s lawsuit, you need a competent attorney to assist you.

When you hire us, we will take over your case and complete every step on your behalf. We maintain open and honest communication throughout any estate litigation matter. You will receive frequent updates about the status, so you know where your case stands and what to expect next.

Since 1992, we have built and maintained a solid reputation in the Dallas community. The work we do for our clients has earned us recognition by prestigious organizations, such as Texas Rising Star and Texas Super Lawyer. We also received an AV Preeminent® rating from Martindale-Hubbell.

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At Staubus and Randall, we take pride in the level of service we provide. When you face a sensitive and emotional legal matter, you need guidance and support. Our team can develop a plan to handle the will contest carefully and efficiently. We can protect your rights and secure your family member’s legacy with the appropriate strategy.

You shouldn’t suffer the consequences of an invalid will after losing your loved one. When their assets and your future are at stake, you deserve an opportunity to fight for your relative’s wishes. We are ready to represent you and take your case to court if necessary.

If you think a lack of testamentary capacity existed when your family member executed their will, contact Staubus and Randall right now. We can file a lawsuit on your behalf to challenge the validity of the will and prove the claim you’re making. Call us at 214-691-3411 for your free consultation.

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In the pursuit of our clients' cases, we utilize recognized experts, including forensic psychiatrists, forensic accountants, hand-writings experts, and investigators.

Frequent Asked Questions

Estate planning is the arrangement of transferring a person’s assets and property after their death. The estate plan you create may consist of cars, homes, life insurance, assets, real estate, jewelry, and other types of personal property. When you create an estate plan, you must sign it in front of a notary public.

Even if you don’t have many assets, it’s still a good idea to create an estate plan, so that loved ones won’t argue over who gets what when you pass away. Your estate plan will ensure everything you own goes to specified parties and doesn’t end up in the wrong hands.

Typically, those with extensive or complex assets will hire an estate planning lawyer to help draft their will. Many use a will to divide personal property, such as a home, among their family members. When you’re preparing your will, you need to make sure you meet specific legal requirements. Having a witness present when you’re signing the documents is crucial.

Of course, it’s possible to draft a will on your own, especially if you don’t have significant assets to leave behind. However, hiring an estate planning lawyer can ensure that your documents comply with current law, and that everything gets divided among your family the way you want, so there’s no confusion.

A power of attorney is a legal document giving power to one person (an agent or attorney-in-fact) to act on your behalf if you become incapacitated. When you create a power of attorney, you can designate a specific person and decide how much authority they will have.

An attorney-in-fact would maintain records of all decisions made on your behalf. Some decisions could include recommending a guardian for dependents or minor children and financial decisions. They could also make decisions about healthcare.

If you allow your power of attorney the authority to stop, give, or withhold medical treatment, you can leave instructions on which services you want and don’t want, when to stop life-saving measures, and when to cease specific treatments.

It’s devastating to lose a loved one, and the last thing anyone wants to do is handle their affairs. However, you must ensure property and assets go to the right people, and everyone follows their final wishes.

The first thing you should do when your loved one passes away is to request a copy of a legal pronouncement of death. You should also notify close friends and family of their death. If necessary, arrange for the supervision of dependents or minor children. You’ll also be able to find instructions on how to move forward with their plans from their will or trust.

A trust is a document that places your assets into a trust fund to transfer to a beneficiary upon your death. Most people will create a trust to speed up the process of settling their estate. You can also protect your assets, reduce taxes, and prevent probate.

With a trust, you’re not only able to control who your assets go to but also how the money gets disbursed. This is especially beneficial if the person you’re leaving money to doesn’t know how to save and spend properly. You can create a payment schedule with a specified amount paid to them on a weekly or monthly basis, rather than as a lump sum.

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What Our Clients Say

"I recently had the occasion to hire Mr. Staubus for a hotly contested Guardianship matter. Mr. Staubus brought a rare combination of effectiveness, reasonableness and understanding of the human element involved. Mr. Staubus handled all things in a calm, highly competent, effective and reasonable way. It could not have been as easy as he made it seem. He's a credit to the Bar."


"Before retaining the guidance of the Staubus & Randall firm, I was at my wit's end trying to close an uncle's estate as a co-executor. In addition to dealing with difficult heirs, I had other pressing business issues coming up immediately on estate land in the middle of the Eagleford Shale including dealings with pipeline, seismic, oil & gas, and construction companies. The local bank also refused to give me access to information relating to the estate. This quickly became the most stressful and desperate time in my life...and then I found Joseph Legere who truly became my guardian angel. He was able to get all issues resolved efficiently and the estate fully closed. His professionalism, immense legal knowledge on a wide variety of topics, and amazing communication skills took the burdens off of me and quickly got closure. I am forever indebted to this firm for giving me my life back."


"Without exception, the legal service, professional attitude, prompt communication of your firm and your legal knowledge is second to none. I only wish I had an attorney here in Boston that could hold a candle to your experience and expertise. Working with you has been a pleasure, but even more, has made me believe that there are knowledgeable attorneys that do care about doing a good job. Thank you Keith! You may not truly understand how much of an impact you are having on peoples lives, but for me, you have helped change my life. As I begin making my dreams come true I can't help but remember none of this would be possible without you."


"Keith Staubus and Julie Blankenship and their team represented me in a jury trial in the probate court where the ownership of the business which I had worked hard to build was at stake. They successfully fought to preserve my business and my professional reputation, working masterfully to gain the support of the jury. I would not hesitate to hire them again in any bet-the-company litigation.”


"I have required legal representation twice in my life in two separate will contests. Both times I sought assistance from Keith Staubus and Staubus/Randall. Their service, approach, and determination to obtain results exceeded the other attorneys in each case. Mr. Staubus has always come across as genuine while being direct. He gets the process done in a timely manner with results. I will certainly use him again when and if any new challenges arise.”


"After my husband's death, I was devastated by having to defend against a vicious dispute over my husband's estate. Julie Blankenship and Keith Staubus made me feel very comfortable in this distressing situation. They were very tough and did an excellent job for me in obtaining a summary judgment in my favor without a full jury trial. I was glad to have them and Diane Walker in my corner to help me achieve an excellent result - I won! If I ever had to go back to probate court, I would hire them again.” - (will and trust construction case)


"If you need intervention for someone you love but don't know where to turn or who to turn to, Julie Blankenship and Keith Staubus helped me through the most difficult and stressful time in my life with a much loved family member. I now believe that good will triumph over evil. They fought for what was right, and good prevailed." (contested guardianship and will contest)


"As a professional money manager, I have used Ryan Randall's estate planning services both personally and for my clients. Ryan has exhibited three critical attributes in his work with me: (1) high intellectual capacity, (2) exceptional thoroughness, and (3) a total commitment to integrity. In today's litigious world, it can be quite costly not to "get things done right.” An added bonus to us was that we found one of the nicest people we could imagine.”


"I was represented by Keith Staubus as an income beneficiary in a lawsuit with the trustee of a family trust. Utilizing the expertise of a forensic accountant and his own trust expertise, Keith was able to negotiate a judicial modification of the trust providing for the buyout of my income interest for a substantial lump sum payment out of the trust, resulting in a win-win situation for all of the parties. I highly recommend Staubus/Randall for any trust disputes and trust modification actions."


"I have been a wealth management specialist and retirement plan consultant with the Dallas/Fort Worth financial community for over 20 years. I have engaged Ryan Randall to work with a number of my best clients over the years, including business owners, professionals and families. My clients always appreciate Ryan’s straightforward approach to estate planning, asset protection planning and business succession planning. He makes even the most sophisticated estate planning strategies understandable."


What planning we can sue for?

When a loved one dies, and the execution of their estate plan begins, many disputes can arise among family members. Despite the decedent's creation of a good estate plan, problems can occur if a power of attorney doesn’t perform their duties or someone’s unhappy with the division and distribution of assets.

The most common disputes estate lawyers see include:

Bad fiduciary selection

A majority of disputes arise when the power of attorney, executor, or trustee doesn’t correctly perform their duties when their loved one dies. That failure is called a breach of fiduciary duty. Common breaches include:

  • Failure to file tax returns
  • Using assets for personal benefit
  • Failure to provide tax and accounting information to beneficiaries
  • Dividing and distributing assets improperly

To avoid these issues, you should ensure your loved one chooses the right fiduciary during the process of planning their estate. Careful selection can ensure there’s no breach of duty, and they act in the deceased’s best interest.

Will or Trust Contest

When someone contests a trust or will, it’s either because they don’t think it’s legally valid or believe someone influenced the creator into making decisions they didn’t want to make.

To be legal, the creator of the will must sign under specific circumstances and in a particular manner. In Texas, the person must meet the following requirements:

  • Be at least 18 years of age;
  • Be of sound mind, meaning they’re able to make decisions and understand the consequences of a will;
  • Sign the will themselves;
  • Signature of at least two witnesses; and
  • List at least one beneficiary.

Improper execution of a will is less common than undue influence. Many will argue that the creator of the trust or will made their decisions because of another party. The person accused of undue influence could be a friend, caregiver, professional advisor, or family member.

Distribution of property

Sometimes conflicts will arise when the creator of a will or trust intends to leave someone their property but dies before they can change their estate plan to reflect that decision. Other instances create conflicts when beneficiaries believe the distribution of property is unfair or inequitable.

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How should I handle estate law disputes?

If you come across the disputes listed above or any other types of disputes, there are options for resolving them. The remedy you choose will depend on the particular conflict and the people involved.

  • Remove the executor: If there’s a problem with the executor of the estate, you might need to replace or remove them. Finding a replacement can be difficult, especially finding one that all parties are happy with. However, it’s the best decision to ensure everyone is satisfied with how the estate gets handled. The best choice would be a neutral third party who doesn’t hold any biases.
  • Litigation: To litigate a dispute, you must be an inheritor and have sufficient grounds for pursuing a lawsuit. Most people will litigate if they believe there was an improper distribution of the property or suffered a financial loss because someone mismanaged the estate.
  • Mediation: This is the best option for individuals who want to settle the issues amicably, timely, and inexpensively. Mediations usually bring about quick results and cost less than litigation. You also have complete control over the outcome because there isn’t a judge or jury involved.

The Firm

The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.

Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.

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