Will Contests in Texas – Part 3

Today we look at the magical term “Testamentary Capacity.”

Out of all the possible avenues for attack in a Will Contest, the question of Testamentary Capacity has to be the most well traveled.  Texas Probate Code Section 88 requires that the testator was of “sound mind” when the Will was executed.  “Sound Mind” is sort of the layman’s term for Testamentary Capacity.  Over the years, the Courts in Texas have developed a definition of Testamentary Capacity that, in its current form, looks like this:

The testator must, at the time of the Will execution, have sufficient mental ability to (1) understand the business in which he is engaged; (2) understand the effect of his act in making the Will; (3) know the general nature and extent of his property; (4) recognize his next of kin and the natural objects of his bounty; and (5) have sufficient memory to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment.  Lindley v. Lindley, 384 S.W.2d 676, 683 n. 1 (Tex. 1964).

While it is never presumed, testamentary capacity is actually a fairly low bar to hurdle.  As long as the person has their wits on the day of the execution, even a subsequent finding of incapacity is not admissible.  The fact that the person writing the will was old or feeble is not enough.  The fact that the person was taking medication is not enough, unless it is shown that the medication rendered him incapable of knowing his family, his estate, or understanding his actions.

Interestingly, a physicians opinion regarding mental capacity is, in the eye of the law, no better than that of any other person.

So the question really becomes, did the person know he was signing a Will, know that a Will transfers his property upon his death, know what property he had, and know the people to whom he wished to leave property.    If those factors are covered, more than likely the person had capacity.

Next time we wrap up our series with a look at insane delusions and undue influence in the making of a Will.