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Evidence in Will Contests, Probate Litigation, and Trust Litigation in Texas

by Russell Aldrich | January 31, 2023

Probate litigation involves disputes over a will or trust. Will contests dispute the validity of the will document itself and seek to have it invalidated by a court with jurisdiction pursuant to the Texas Estates Code. In other instances, disputes will arise not out of the legitimacy of the underlying will or trust document itself, but rather with the administration of the estate or trust by an executor, administrator, or trustee.

Types of Evidence in Contested Probate and Trust Proceedings

The types of evidence commonly used in will contests and other litigation related to estates and trusts include:

  1. Wills, trusts, and estate planning documents: Originals and photocopies of any wills, trusts, or estate planning documents, including any amendments, restatements, or codicils, can be used as evidence in probate and trust litigation.
  2. Witness testimony: Witnesses who were present when the will or trust was executed or who have knowledge of the testator’s (i.e., the person who made the will) intentions can provide valuable testimony in probate and trust litigation.
  3. Medical records: Medical records can be used to establish the testator’s mental capacity at the time the will or trust was executed.
  4. Financial records: Financial records, such as bank statements and tax returns, can be used to establish the value of the estate and to determine if any assets were transferred before the testator’s death.
  5. Expert witness testimony: Expert witness testimony can be used to establish the authenticity of a will or trust document or to provide testimony about the testator’s mental capacity at the time the will or trust was executed. They can also be used to explain complicated financial records and the medical records of the decedent.
  6. Evidence of undue influence or fraud: Evidence such as emails, text messages or surveillance footage, medical records, and suspicious financial transactions can be used to establish that a will or trust was executed under undue influence or as a result of fraud.
  7. Evidence of property rights: Title deeds, mortgages, and other records relating to the ownership of property can be used to establish property rights.

It is important to note that the types of evidence that can be used in probate litigation must comply with the Texas Rules of Evidence. An attorney with experience in probate litigation can help you understand the types of evidence that are admissible in your case and assist you in collecting and presenting the evidence in court.

Probate Litigation Discovery

Discovery is the formal process of gathering evidence and information in a contested legal proceeding, such as a will contest or a breach of fiduciary duty lawsuit. Unsurprisingly, the opposing party will usually not provide this evidence willingly and must be compelled to turn it over through various means of discovery requests prepared by your attorney. Third parties, such as banks or other financial institutions, will need to be served a subpoena to obtain their records.

A probate litigation attorney has a wide variety of discovery tools at their disposal to uncover relevant facts and evidence in the case. Some examples of these tools include:

  1. Requests for production: Each party can request that the other party produce documents and other tangible things that are relevant to the underlying litigation. The responding party must produce the requested documents and other items within thirty days so that they can be copied, inspected, tested, and photographed. In a will contest, for example, a probate litigation attorney will ordinarily submit a request that the opposing party produce any copies of wills, trusts, estate planning documents, communications with the decedent or other third parties, photographs of the decedent, medical records of the decedent, and the decedent’s financial records early in the lawsuit. There is no limit to the number of production requests that may be sent by a party over the course of a probate or trust lawsuit.
  2. Interrogatories: The parties can send written questions to the other side that must be answered in writing under oath. By default, in Texas parties are limited to twenty-five interrogatories over the course of the litigated proceedings. The party providing answers to the interrogatories will often be asked to elaborate on their responses later in a deposition. Answers to interrogatories may also provide the basis for additional discovery requests. For example, a response to an interrogatory requesting a list of phone numbers used by a party to the probate litigation can later be used to draft a subpoena to the relevant cell phone providers requesting a list of any calls or text messages between the party and the decedent over the last five years of the decedent’s life.
  3. Depositions: The parties can take sworn testimony from the other side, as well as from any other relevant witnesses, which can provide further evidence related to the probate litigation. Depositions lock in a witness’s story and can be used to impeach the witness if they attempt to change their testimony at trial.
  4. Requests for admissions: The parties can request the other side to admit or deny certain facts, which can help to narrow the issues in the case and save time and money at trial. There is no limit to the number of admissions that may be sent by a party during a probate or trust lawsuit.
  5. Requests and motions for entry upon property: The parties can request to enter and inspect any real property that is related to a probate or trust dispute, such as land or a house held by the estate or trust. If a party seeks entry onto real property held by a person or entity that is not a party to the lawsuit, then a motion requesting permission from the court is required.

Documents produced pursuant to these methods often contain information used to generate additional discovery requests. When a party to the probate litigation does not have possession or access to the documents requested, it may be necessary to serve a subpoena on any non-party persons or institutions in possession of those documents. For example, if a party responds to a request for production of the decedent’s bank records that they do not have those documents in their possession, a subpoena may be sent directly to the bank itself commanding them to produce those statements.

Frequently, a party will object to a discovery request on the grounds that it is vague, overbroad, harassing, or irrelevant. In these instances, the probate litigation attorney will file something called a motion to compel in which they will request the probate judge to order the other side to respond.

It’s important to note that in Texas, the rules of discovery are governed by the Texas Rules of Civil Procedure and the Texas Estates Code. It’s also important to note that there are deadlines on when a request for discovery must be answered and certain restrictions that apply, for example, certain documents may be protected by attorney-client privilege. It’s recommended to consult an attorney with experience in probate and trust litigation in Texas as they can advise on the best course of action and guide the parties through the discovery process.

The Aldrich Law Firm, PLLC’s attorneys have a wealth of experience navigating complex evidentiary issues in will contests and other forms of probate and trust litigation. If you have a contested probate or trust matter that you would like to discuss, please do not hesitate to contact us for a consultation.