Testament Capacity – Your Last Will and Testament

Understanding the Complexities of End of Life Documents in Texas

One of the most common grounds for challenging the validity of a last-will and testament is to question whether the testator had testamentary capacity at the time the document was signed. To say it another way, the testator must be of sound mind when the will is executed. But what does that actually mean?

Testamentary capacity is similar to having the mental capacity to understand the gravity of the last-will and testament, which is a legally binding document. It would not be acceptable to permit these documents to hold up in court when they were clearly signed by a person who was out of his or her mind. Mental capacity generally declines with age, and many individuals wait until late in life to write a will. It is important that the testator be lucid and able to make important decisions about the distribution of his or her assets.

In Texas, at the time the last will and testament is executed, the testator needs to be able to:

1. Understand that he or she is drafting a will and that the will’s purpose is to exact how his or her assets will be distributed upon death;
2. Appreciate the nature and extent of his or her assets, including real property, personal property and any financial accounts or instruments;
3. Know who his or her family members and next of kin are; and
4. Remain lucid and have sufficient memory to make reasonable distribution decisions about his or her assets and to be able to get all of the information recorded into a will.

Challenging the Validity of a Last Will and Testament

When the validity of the will is challenged with regards to testamentary capacity, the challenger should initiate an action before the probate court. While a testator is presumed to have testamentary capacity unless proven otherwise, when validity is in question, the probate court could consider many factors when making a determination as to whether the testator was of sound mind on the day of execution of the will, including but not limited to:

• Medical evidence as to whether the testator had a mental condition with a history of presenting persistent symptoms that may have been affecting his or her judgment on the day of the will’s execution;
• Witness testimony as to how the testator was behaving on the day of the will’s execution; and
• Evidence regarding how the testator was responding to questions the day of the execution of the will.

If the court believes that the evidence supports a finding that the testator lacked the requisite mental capacity, then the last-will and testament becomes invalidated.

When you Need a Estate Attorney

In order for a will to be valid under Texas law, the testator must have “testamentary capacity” at the time of signing the will. If the testator lacked testamentary capacity at the time of signing, the last-will and testament is invalid. If you would like to challenge the validity of a will, or are interested in having a will prepared for you, you should contact the experienced estate planning attorneys at Giles & Giles. We work with you to make sure that your wishes are honored after you death.