Contesting a will means filing a lawsuit that asks a Travis County probate judge to set aside a will that has already been admitted to probate. You’ll need a recognized legal ground, the evidence to prove it, and a petition on file inside the two-year deadline.
Texas presumes that a will admitted to probate says what the person wanted it to say. You overcome that presumption by pleading and then proving one of the grounds Texas courts recognize. These are the ones that actually get tried.
Capacity is measured on the day the will was signed. The question is whether the person understood they were making a will, had a general sense of what they owned, and knew who would ordinarily expect to inherit. A dementia diagnosis doesn’t settle that question by itself, and one good day in the medical chart doesn’t settle it either.
Most contests are really built on undue influence, and it’s the hardest ground to prove from documents alone. You have to show that someone substituted their own wishes for the testator’s. The usual signs are isolation, dependence, a late change in the estate plan, and a beneficiary who helped arrange the signing. Because the proof comes from a pattern of conduct, live witnesses carry much of the case.
These grounds don’t depend on the testator’s state of mind. They ask whether the document was signed and witnessed the way Texas law requires, or whether a later will revoked it.
Texas Estates Code Section 256.204 gives an interested person two years after a will is admitted to probate to file a contest.
The clock runs from the date the order admitting the will was signed, not from the date of death or the day a relative told you about it. Two years goes faster than people expect once you work backward from it. Before that date you need the court file pulled, the drafting attorney’s file and the medical records requested, the witnesses located, and the petition filed.
The statute has two exceptions. A contest based on forgery or fraud can be filed within two years after the forgery or fraud is discovered, and an incapacitated person, which includes a minor, has two years after the disability is removed.
If your deadline is close, call (512) 273-7444 instead of emailing.
A will contest in Austin is heard by one of two statutory probate courts. Government Code Section 25.2291(c) creates Probate Court No. 1, where Judge Guy Herman presides, and Probate Court No. 2, where Judge Nicholas Chu presides. Both courts sit at 200 W. 8th Street in downtown Austin, and both judges hear probate matters as their regular docket. Judge Herman was first elected Travis County probate judge in 1985.
Williamson County, just to the north, has no statutory probate court. Government Code Section 25.2481 gives it five county courts at law.
Your cause number tells you which Travis County court you’re in. Under Government Code Section 25.2293 and Local Rule 1.3(a)(3), the county clerk dockets odd-numbered probate, guardianship and trust cases, along with their related cases, in Court No. 1, and even-numbered ones in Court No. 2.
Local Rule 2.2(3): it is usually the contested matters that bear no direct relationship to the administration of the estate that are related or ancillary and must be given a new cause number.
When a contested matter is split into its own cause number, a search of the original probate cause won’t show all of the litigation. Check the court’s posted instructions on related and ancillary filings, and search the clerk’s records by party name as well as by the original cause number.
Two more local rules catch lawyers from other counties. Local Rule 3.1(b) says no probate docket is a drop-in docket, so every hearing has to be specifically set. Under Local Rule 3.3 the court doesn’t send notices of settings, and the party that obtained a setting has to notify everyone else.
Texas Estates Code Section 55.002 gives a party to a contested probate proceeding the right to a jury trial.
Using that right takes some paperwork. Under Local Rule 3.2(d)(1), before you ask for a jury trial setting you have to file a written jury request and pay the jury fee under Rule 216 of the Texas Rules of Civil Procedure, unless an affidavit of inability to pay is filed. Make the request early and pay the fee before you ask for a date. Under Local Rule 5.2(a), every case on the jury docket also gets at least one pretrial hearing.
Local Rule 4.3: affidavits in lieu of live testimony or depositions are prohibited unless authorized by law.
In a capacity or undue influence case, that rule shapes the whole file. The signing witnesses, the drafting attorney, the treating physician, the caregiver, and the neighbor who noticed the visits stop all need to come to court and testify. A tidy affidavit from a cooperative witness won’t take their place.
Remote testimony won’t fill the gap either. Local Rule 4.2(a) doesn’t permit remote hearings or remote appearances unless they’re absolutely necessary, and Local Rule 4.2(b) prohibits remote appearances in a contested case when documentary evidence will be presented.
That means the work has to start early. Find the witnesses while their memories and health hold up, depose anyone who may not make it to a trial setting, and request the medical and drafting-file records right away. A contested will case involves discovery, experts, a trial setting and often mediation, since Local Rule 5.1 lets the court refer a case to mediation. These cases commonly run well over a year.
We handle contested probate work: will contests, removing an executor or administrator, breach of fiduciary duty claims, contested heirship proceedings, and estate real property disputes. We don’t do muniment of title, small estate affidavits, affidavits of heirship, simple wills, estate planning, or routine uncontested administration. If that’s what you need, you shouldn’t be paying litigation rates for it.
Bring the date the will was admitted to probate, the cause number if you have it, and the names of the people who were around the testator during the last year. We’ll tell you whether you have a ground worth filing and how much of the two years is left.
The first conversation is free and usually short.