Reed: Who has the burden of proving a will is valid?

Sandra W. Reed
Special to the Reporter

Julia applied for probate of a will made by her mother, Inez, in 2020, which left her entire estate to Julia. The court admitted the will for probate. Julia was named as Independent Executrix in the will and she qualified as such. Thereafter, Julia’s brother Timothy, contested the 2020 will on the basis that Inez lacked capacity to make the will due to Alzheimer’s.

Furthermore, he produced a 1990 will that divided Inez’s estate in equal parts between Julia and Timothy. Who has the burden to prove that the 2020 was valid? Does Timothy have to prove that the 2020 was invalid?  Who has the burden to prove the validity of the 1990 will?

Sandra Reed

Burden of proving validity of a will prior to probate?

Julia had the burden to prove that the 2020 will was valid. Since the 2020 was not contested prior to the hearing to enter it into probate, the court found that, on its face, the will was valid.

Burden of proving will entered into probate is invalid?

Since Timothy did not contest the 2020 will until after it was entered into probate, he has the burden to prove that the 2020 will isn’t valid. That is because once the will is probated, the burden of proof shifts to the contesting party to prove it should not have been probated. Timothy will have to show that Inez was not mentally capable of making that last will and testament due to her incapacity from Alzheimer’s. He might also contend that Julia had unduly influenced their mother to favor her over him. In either case, he must produce sufficient evidence of his claims that the will is invalid.

Burden of proving will not yet entered into is invalid?

Had Timothy filed his contest to the 2020 will and applied to have the 1990 will probated instead, before the 2020 will was probated, Julia would have had to prove that Inez had the capacity to make the make the 2020 will. If Julia did not meet that burden, the court would reject that will for probate. In that instance, Timothy would still have to prove the 1990 will was a valid will.

Lesson Learned: It is much harder to win a will contest if the will one is contesting has already been entered into probate.

Sandra W. Reed practices elder law in Somervell County, which includes handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning. She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at