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Disinherited Step-Grandson Lacks Standing to Challenge Codicil

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Will challenges are far less common than most people think. One reason: few people have any basis on which to challenge a will, even if they feel aggrieved. In legal terms, most potential challengers simply lack any “standing” to contest a will. A recent Texas case illustrates the concept nicely.

Lucy Lee’s will and codicils

Lucy Lee, a Texas resident, signed her will in 2013. She left everything to a trust for her son. After his death, the remaining trust assets go to her grandson Jack and her late husband’s grandson, Michael.

In 2015, Lucy signed a codicil to the will. It made some changes to the trust terms for her son. It also changed the remainder beneficiaries. Instead of Jack and Michael getting the remaining money after her son’s death, it would all go to her niece, Mary.

A little over a year later, Lucy signed a second codicil to her will. This time she eliminated the trust provisions altogether. Instead of a trust for her son, she left everything to him outright.

Lucy died just eight days after signing her second codicil. When her will and codicils were submitted to the probate court in Texas, step-grandson Michael objected. He argued that Lucy was by that time incapacitated. He also insisted that her son had unduly influenced her to make the change.

Michael’s lack of standing

On first glance, there was one big problem with Michael’s challenge. He lacked standing to file the objection to Lucy’s will.

But he was a relative (albeit a step-relative), and he had been named in an earlier will — wouldn’t that give him standing? Not at first, anyway. Let us explain.

Even if Michael could successfully challenge the second codicil, he wouldn’t receive anything under Lucy’s will and first codicil. Remember: the first codicil had removed him from the trust. That would benefit niece Mary, but not Michael.

One of the things that makes Lucy’s estate a good case study is that Michael is not actually a relative. If she had no will at all — or if he successfully challenged all her wills — he would not receive anything from her estate. Michael had to thread the proverbial (and legal) needle: he would have to prove that her original will was valid, but then get around her two codicils.

Michael and Mary’s side deal

As the facts developed, it turned out that Michael had anticipated this problem. He also had his differences with Lucy’s niece Mary, who benefited from the first codicil. The two of them, though, had met and worked out those differences.

In an agreement that became part of the probate proceedings, Michael and Mary had joined forces to challenge Lucy’s will. Michael agreed to initiate the probate challenge. For her part, Mary agreed to give Michael 40% of anything she got from Lucy’s estate. Both potential claimants agreed not to challenge one another’s position for any alleged lack of capacity or undue influence.

Because of that agreement, argued Michael, he was an interested party under Texas probate law. Besides, he was named in the first will — and that made him an interested party, as well.

Michael also tried to turn the standing argument against Lucy’s son. He wasn’t a party to the Michael/Mary agreement, argued Michael — and so he didn’t have any standing to challenge its terms or effect.

Nonsense, ruled the probate judge. Even with the side agreement in place, Michael was not a beneficiary of Lucy’s estate if the second codicil failed. He lacked standing to contest the will and codicils.

Furthermore, Michael and Mary’s agreement was itself flawed. The trust created under the will (and maintained under the first codicil) was a “spendthrift” trust. That meant that Mary could not bargain away any of her interest in the proceeds — and her attempt to do so was invalid.

The Texas Court of Appeals weighs in

After reviewing the probate judge’s decision and analysis, the Texas Court of Appeals agreed. Michael’s lacked standing to challenge only the second codicil to the will.

Michael was not an interested person just because he was mentioned in the original will. That mention did not confer standing sufficient to allow him to challenge only the second codicil.

The agreement between Michael and Mary did not give Michael standing, either. Lucy’s son was right to challenge the validity of that agreement, and it was invalid because of the spendthrift language.

The Court of Appeals’ final analysis: Michael has only a potential claim against Lucy’s estate, and he is not an interested party. If he had challenged both the first and second codicils, he would have had standing — if successful, he would have received an interest in her estate. But he could not give himself standing with an unenforceable agreement with her niece Mary. Estate of Lee, May 25, 2018.

The broader significance

Michael’s failed challenge should give comfort to anyone who has ever signed a will. Distant family members (like Michael, as a step-grandson) do not have an inherent right to challenge a will. Even if they are named in earlier wills or codicils, they do not necessarily have any standing to mount a challenge later.

It’s worth noting that Lucy’s probate involved something not seen very often these days: she had signed not one, but two separate codicils. As most people realize, a codicil is an amendment to a will. It is subject to the same requirements (capacity, proper execution, lack of undue influence) as a will. It is treated, as in Lucy’s case, as if each codicil is a whole new will.

Why are codicils uncommon today? Because of word processors. Most lawyers find it just as easy to reproduce an entire will rather than create a series of codicils. Having to keep track of the will and all the amendments can just add confusion to the probate process. The codicil is rapidly becoming a legal artifact.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.