Texas law presumes a will says what the person wanted. If you want one set aside, you’ll have to give the court a legal reason, and disappointment with how the estate was divided doesn’t count as one.
Capacity is judged at the moment of signing. The question is whether, on that day, the person understood they were making a will, had a general sense of what they owned, and knew who would naturally expect to inherit. A dementia diagnosis doesn’t answer that question by itself, and a bad week doesn’t either. Medical records from close to the signing date usually decide these cases.
Most Dallas County contests are built on undue influence. The influence has to have overpowered the person’s own free will, so ordinary persuasion or a close relationship isn’t enough. The evidence is almost always circumstantial: isolation from other family, a sudden change late in life, dependence on the person who benefited, and that person’s role in getting the will prepared.
A Texas will has to be in writing, signed, and attested by two credible witnesses at least 14 years old, unless it’s a holographic will written entirely in the testator’s handwriting. If the self-proving affidavit wasn’t executed correctly, the will can still stand. The proponent loses the shortcut, though, and has to prove the will with live testimony.
These claims come up less often and are harder to prove, but they carry more weight when proven. Revocation, whether by a later will or by physical destruction of the original, is a separate argument and doesn’t require any attack on capacity.
Texas Estates Code Section 256.204 gives an interested person until the second anniversary of the date the will was admitted to probate to file a contest.
There are two exceptions. A suit to cancel a will for forgery or other fraud can be filed within two years after the forgery or fraud was discovered. An incapacitated person, which the Estates Code defines to include a minor, has until two years after the disability is removed, and for a minor that generally means turning 18.
Courts apply the fraud exception narrowly. The will and the order admitting it sit in the county clerk’s public file, and Texas courts charge interested persons with notice of what the probate records contain. The Texas Supreme Court applied that rule in Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981), and it’s the reason the discovery rule so rarely saves a late contest. Plan on two years from admission.
Dallas County has three statutory probate courts, named in Texas Government Code Section 25.0591(d).
All three sit on the 7th floor of the George Allen Courts Building, 600 Commerce Street, Dallas, Texas 75202.
Local Rule 2.01(b) requires a will contest to be filed in the cause number of the proceeding in which the contested will was admitted to probate, or in which an application to probate it is pending. The contest keeps that cause number and stays in that court.
Two related rules apply. A suit on a claim against the estate gets a new cause number and is assigned to the court where the administration is pending. Under Local Rule 2.01(a)(3), any proceeding that seeks to attack or set aside an order is assigned to the court that rendered it.
The Supreme Court of Texas approved the local rules of the Dallas County statutory probate courts in Misc. Docket No. 19-9079. Several of them carry real consequences once a case is contested.
None of these rules is unusual. Missing one can still cost you a setting, and that tends to happen when counsel handles a probate contest the way they’d handle a district court case.
Expect to mediate. Under Local Rule 3.03(h), the court can refer a case to alternative dispute resolution on its own motion or by agreement, and counsel can move for a referral to mediation when the parties can’t agree. Most contests settle at mediation, and the ones that don’t usually involve something beyond money.
If the case doesn’t settle, Texas Estates Code Section 55.002 entitles a party in a contested probate proceeding to a jury trial. Juries matter in undue influence cases. The proof is a pattern of conduct, and twelve people often recognize one more readily than a cold record would suggest.
A contested will in Dallas County is full litigation, with depositions, medical records, sometimes a capacity expert, mediation and a trial setting. We tell clients to plan on more than a year and to treat a faster result as good luck.
The court also watches for cases that stall. Local Rule 2.09 lets each court dismiss for want of prosecution a matter that has been on file at least a year without a trial or hearing setting, so a contest that’s filed and then left alone is at risk of dismissal.
Bring the will, the date it was admitted to probate, and the cause number if you have it. The first consultation is free and usually short.