Over the past few weeks, the Law Office of Bryan Fagan has been keeping up with the goings-on regarding Aretha Franklin's estate. Ms. Franklin, famed R&B singer, died without having a firm estate plan in place. She left behind multiple holographic, or handwritten, wills that seem to contradict each other in many regards. As I'm sure you could imagine, someone with her wealth left behind several property items including a large home. She had four sons who are now trying to go through the probate courts of Michigan to determine what their mother’s true intent was in these handwritten wills.
It does not take an estate planning genius to figure out that this is not an ideal situation. Legally, Ms. Franklin’s estate is going through a probate battle currently where her property is being diminished by the day to fund the probate case. From a relational standpoint, so much of her family’s time and energy is being spent focusing on Ms. Franklin’s “stuff” rather than on the memory of her and who she was as a person. This is not what she would have intended to have happened, I am confident in saying.
Despite this, Ms. Franklin died without a will that was clear in her intentions. What is done is done, and unfortunately for her family, this is the course that has led them down. Hopefully, the matter can be resolved soon. For the rest of us, we can try to take away some lessons from this situation to apply to our own lives. It would be a mistake to assume that just because Aretha Franklin was a famous person that there are no lessons that we can draw from her situation. If nothing else, view the battle over her estate as a cautionary tale for the rest of us to try and avoid.
If you are in a situation where there is a will contest or probate-related matter which is impacting your family, please reach out to the Law Office of Bryan Fagan today. We make it simple for you to come into contact us with whether it be in person, over the phone, or via video. We have office locations across southeast Texas and the Houston area. A free-of-charge consultation with one of our experienced estate planning attorneys may be just what you need to get on the right track toward planning a case related to probate or estate planning issues.
What does it mean to go through a will contest?
The situation involving Ms. Franklin and her estate is not the norm as far as probate cases are concerned. Most of the time when a will or an estate goes through probate it does so uncontested. However, her situation shows us that disputes can arise during this type of case. Additionally, it does not have to be complex or large probate cases that see these contests occur. Rather, even small, and medium-sized estates can result in a will contest or other contested issues arise therein.
What ends up happening in many of these cases is that a person dies who did have a will drafted. That will become public knowledge (or at least known to the deceased person’s immediate family) and then a potential beneficiary or family member will find something that he or she believes is a problem in that will. Contesting the will as a part of a probate case is not a simple endeavor. If you believe that there is an issue associated with someone's will in whom you are named as a beneficiary, then it may be necessary to contest the validity of that will. This process involves knowledge of the Texas Estates Code as well as how to operate and function within the probate court itself. Having an attorney to advocate your position and hold others accountable is crucial to your success.
If you are the person who will be bringing the will contest to the floor of a probate court that means that you are known within that case as the contestant of the will. Something crucial that you need to determine attempting to file a will contest is whether you even have the legal right to do so. The ability to bring forth a legal action connected to a particular issue is known as standing. If you lack standing, then you will not have the ability to submit a will contest. Fortunately, many people have standing in Texas to contest the validity of a will including the spouse of the deceased, creditors, and heirs of the deceased. Even if you do not fall into any of those categories you can still likely bring forth a will contest as long as you have some property interest concerning the estate of the deceased.
A common scenario that we see play out in movies (if not real life) is where a wealthy person passes away and, instead of leaving most if not all their property to their spouse and/or children, leaves all his property to a nurse or home health aide with whom he spent a great deal of time with towards the end of his life. Unless the gentleman made this known to his family ahead of time all of this probably would have been a shock to his children. However, the children of the deceased would certainly have the standing to bring worth a contest action in probate court as to the validity of their deceased father’s will.
There is also a time limit to concern yourself with as far as how long after a person passes away can you still attempt to contest their will. In Texas, the statute of limitations on bringing a will contest is two years. On a practical level, it is easier to bring your will contest to the attention of the court by filing an intervention into an already existing probate case sooner rather than later. This means you should have an idea of what you want to do soon after the deceased individual passes away.
Once you make up your mind to contest the will, timing also becomes a factor as far as who has the burden of proof in your case. Let’s say that the will has not been probated yet. In a situation like that the executor or the personal representative of the estate would have the burden of proof to show the validity of the will. On the other hand, if the will has been probated already then, the burden of proof is on you as the person who is trying to contest the validity of the will. This is a tougher road to hoe. You would need to show that it is more likely than not that the will is invalid.
What are the grounds on which a person may contest a will’s validity?
There are several grounds on which you can base your will to contest in Texas. Especially with older people or people who are ailing physically or mentally, the argument that the person could have been unduly influenced by another person has some legs to it in many cases. What your will is supposed to do ideally is to show what you want to have to happen after you die when it comes to how your property is divided. This means that your will should be free of the unwelcome influence of others and should reflect your wants and desires. When you believe that a loved one's will have been shaped unduly by another person’s influence then you would need to decide whether or not to contest the validity of that will.
In many cases, it is one of the beneficiaries of the will who would coerce or threaten the testator (person who creates the will) to include certain language in the will which would be to his or her advantage. That person would use their position as a caregiver, friend, close family member, or something different entirely to unduly influence the testator in the drafting of the document. As we saw a moment ago, timing means a lot when it comes to proving the validity of the will. If the will has already been probated you may bring a will contest without two years of the person’s death. However, the burden is on you to show that the will is invalid.
One of the challenges of proving the invalidity of a will based on grounds of undue influence is that undue influence is often hard to prove. There is usually no physical evidence of undue influence. Rather, undue influence usually occurs behind closed doors between one person who holds physical or emotional power over the testator. As you can tell, a case like this can quickly become a "he said, she said" type of affair. Not always the easiest to prove, if you find yourself in a position where you are needing to bring forth a will contest based on undue influence it is best to have an experienced estate planning attorney by your side.
Another ground on which to challenge the validity of a will is to argue that the testator could not create a will. This is an important challenge to a will because the age of the person who creates the will is directly relevant. A will is an important document that conveys to the world your intentions for your property after you pass away. With that said, you also need to have a basic level of understanding of what you are doing and what a will can mean for your future. If you are not aware of the ramifications of what you are doing in drafting a will then you are in danger of lacking what is called testamentary capacity.
Challenging a will based on the testator lacking testamentary capacity means that the testator may not have had a memory of creating and signing the document. For example, if your Uncle Bob created a will for himself in his hospital room after he was recovering from a complex surgery then there may be grounds to challenge the validity of the will based on grounds of testamentary incapacity. You could argue that he was on powerful pain medications for an extended time after the surgery and as a result, he was not cognizant of where he was, what he was doing, or certainly of the consequences of the will that he was creating.
When it comes to the document itself, your will does not need to contain many things to be found valid but certain requirements under Texas law must be in place. First, the will must be in writing for it to be valid. Oral wills or promises to individuals that he or they would receive property from you after your passing are not valid forms of a will in Texas. You need to put those desires in writing. As mentioned earlier in today's blog post with Ms. Franklin, holographic or handwritten wills are valid in Texas. A typewritten or handwritten will are both valid in Texas.
Next, the will needs to be signed by the person who is creating the document. It is also possible that an agent of the testator (such as a personal representative, executor, or person with power of attorney) may sign the document in the place of the testator. A person who cannot read or write can "sign" their will with a simple mark such as an "X." However, the testator must sign the will in front of at least two witnesses. Another person may sign the will in place of the testator in situations where the testator is physically incapable of signing their name for some reason. If a third-party sign the will in place of the testator then the signing must occur in front of the testator and only after the testator directs the person to sign. All of this should be done in front of the two witnesses.
Another issue that sometimes comes up regarding the validity of a will relates to ambiguous language in the document. A will should, ideally, contain clear and concise language which directs an executor to perform certain actions on behalf of your estate. If there is vague language contained in the will that invites arguments and disagreements over what the particular provision or instruction in the will states. When you have multiple children and multiple types of property that you would like to leave to the children then it behooves you to be as specific and clear as you can about what property item should go to a specific child. Even stating serial numbers, model numbers, account numbers, etc. can reduce the likelihood that confusion occurs.
Another reason why a will could be deemed invalid is when the language is clear but contains errors. Errors like this occur in large part because of people trying to move too quickly through the drafting process. We call them "drafts" for a reason- meaning that it is best to take your time and go through drafts thoroughly to pinpoint and eliminate mistakes that are contained in the documents. If a beneficiary of your will challenges the validity of the document based on the number of acres or units of property are different than they contain.
What should you do after you create a will?
Once you have gone through the process of drafting and completing your will a reasonable question that you may have is what should you do with the will? You can send the original version of the will to your county or district clerk- whichever handles probate matters. Or, if you use an attorney’s services then you may choose to keep the will with the attorney who drafted the will with you. The benefit of using an attorney or keeping your will at the clerk’s office is that you know exactly where it is, and it can be easier to find the will if you ever need to check on something or make changes in the future.
What should you do now?
Now that you have read some about Ms. Franklin’s situation and hopefully understand more about what it means to create a will in Texas it would make sense to take the next step towards creating your own will. Working with an experienced estate planning attorney can help you hit the ground running when it comes to creating a will. If you would like to create a will that helps your family, friends, and other causes you believe in long after you have passed on, a will is the best way to do that for many people. The Law Office of Bryan Fagan can help you get your will together in the most efficient way possible.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of estate planning as well as the impact on your family from a probate case being filed.