Testamentary Capacity Checklist

Testamentary Capacity Checklist

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 by the proponent of the will.