Contesting a Will Because of Lack of Testamentary Capacity

Contesting a will in Texas

Written by Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.

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 checklist of the requirements needed to show testamentary capacity at trial. The checklist is repeated below.

In Texas, a testator has to have testamentary capacity to make a will. A testator has testamentary capacity if, at the time the testator signs a will, he –

  1. has sufficient mental ability to understand that he is making a will, and
  2. has sufficient mental ability to understand the effect of his act in making the will, and
  3. has sufficient mental ability to understand the general nature and extent of his property, and
  4. has sufficient mental ability to know his next of kin and natural objects of his bounty and their claims on him, and
  5. 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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Robert Ray

Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases all across Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray is a Texas attorney who handles inheritance disputes

Why Us?

Inheritance disputes involve someone who has taken advantage of the elderly. These cases are complicated and most often, but not always, involve outsiders. We represent you knowing that these inheritance disputes are private and painful family matters. We know this is a stressful time for you. We strive to obtain the quickest and best results possible so that you can get this troubling episode behind you.


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