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Invalid wills can be admitted to probate if not contested

The idea to take away from the case discussed in this article and similar cases is that this will had been admitted to probate. If the family had not contested it, the “friend” would have taken all the estate. Even invalid wills sometimes get admitted to probate as this one did. So to the question of “Can you probate an invalid will in Texas?” The answer is yes if the proper beneficiaries don’t take action quickly to contest the will.

Recent Case

In The Estate of Romo (not that Romo), the El Paso Court of Appeals ruled on a will contest case. The will had been filed by the testator’s “friend” and the judge admitted it to probate. It left the testator’s estate to the friend. Several months after the will had been admitted to probate, a will contest was filed by the testator’s family. The family offered a prior will that left all to the family. The will contest was filed because, allegedly, the testator did not have the mental capacity to make the new will and he was being unduly influenced by the friend.

The notary was the first witness. She testified that the testator was not present when the two witnesses signed the will.  After the notary testified, the trial judge ruled that the new will was invalid. The trial judge never reached a decision on whether the testator had mental capacity or was being unduly influenced. The proponent of the will appealed. She claimed that the only two grounds listed by the contestant for contesting the will were based on mental capacity and undue influence. Since there was no evidence of lack of mental capacity or of undue influence, the judge should not have reversed his prior decision admitting the new will to probate. 503 /3 672.

Can you probate an invalid will in Texas

The appeals court reviewed the evidence which consisted of one witness’s testimony who testified that the witnesses did not sign the will in the presence of the testator, a requirement for Texas wills. The appeals court stated:

To admit a will to probate, a trial court must find that it is valid… it must comply with the statutory provisions governing the formalities to be observed during a will execution…the proponent for the admission of a will to probate must establish that ” the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will”…(a) will not executed in accordance with the prescribed statutory requirements is of no force or effect…a last will and testament must be in writing, signed by the testator, and ” attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.

The appeals court went on to state that the trial court’s determination that the will was invalid for reasons other than those alleged by the Contestants was proper because only a valid will can be probated and the friend’s will was not valid.

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