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.
