The most successful ground for contesting a will in Texas is lack of testamentary capacity. As people age, it is easier and easier to have them make a new will that they would not make if they had their full mental faculties. There may be a number of causes – both in legal and in psychological terms – that might diminish a person’s testamentary capacity, but the result of each is often the same: any wills they may have created while lacking testamentary capacity may be overturned.
I have a checklistof the requirements needed to show testamentary capacity at trial. The checklist is repeated below.
In Texas, a testatorhas to have testamentary capacity to make a will. A testatorhas testamentary capacity if, at the time the testatorsigns a will, he -
- has sufficient mental ability to understand that he is making a will, and
- has sufficient mental ability to understand the effect of his act in making the will, and
- has sufficient mental ability to understand the general nature and extent of his property, and
- has sufficient mental ability to know his next of kin and natural objects of his bounty and their claims on him, and
- has sufficient memory to collect in his mind the elements of the business to be transacted and to be able to hold the elements long enough to perceive their obvious relation to each other and to form a reasonable judgment as to these elements.
Notice that there is an "and" after each of these. A testator must have all of these qualities not just some or most.
Testamentary capacity is never presumed due to the statutory requirement that “sound mind” be proved.
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This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney–client relationship. These matters turn heavily on specific facts and specific dates, and the law has exceptions this page does not cover. You should not take, or refrain from taking, any action based on this page. Discuss your circumstances with an attorney who can advise you on them.