//Lack of Capacity
Lack of Capacity

Lawyers for Contesting a Will Based Upon Lack of Capacity

 A Will Contest in Probate Court is often based upon allegations that the deceased did not have “Testamentary Capacity” when the subject Will was executed.  Under Texas law, in order for a testator (person signing a Will) to legally execute a will he or she must be over 18, a legally married person, or a member of the Armed Forces at the time of the will’s execution. In addition to this, the person executing the will must possess “testamentary capacity”. This means that he or she be “of sound mind” at the time of execution. The purpose of this requirement is to ensure that the last wishes of the testator are carried out completely. This requirement also protects the decedent’s family as well as his or her estate from exploitation. This requirement is one of the most frequently debated topics in cases involving the validity of a will. Jurisdictions interpret this phrase to mean different things, and it is interpreted on a case-by-case basis.

 

How do you know if a testator is “of sound mind” when they make their will in Texas?

Texas precedent has established generally that a person is “of sound mind” when he or she:

  • Is fully capable of understanding what he or she is doing.
  • Fully comprehends the consequences associated with the execution of the will at the time of drafting.
  • Fully comprehend as the general nature and extent of his or her property.
  • Is not b significantly debilitated in memory retention.

A person possesses an “unsound mind” when he or she is under the influence of a delusion or perceives the facts differently from how a rational person would perceive them. This often takes form when the testator suffers from dementia, Alzheimer’s disease, or any other neurodegenerative or mental incapacities that result in the testator’s memory or judgment capabilities being blurred. When a person believes their loved one lacked the required mental capacity when their will was drafted or modified, they and their attorney can pursue a number of avenues in order to prove lack of testamentary capacity.

For example, say an old lady suffers from a neurodegenerative disease which progresses in severity as she ages. Before she dies, she modifies her will to leave her entire estate to her retirement home boyfriend. A court can declare her will invalid due to her lack of capacity at the time the will was made if she was of unsound mind or did not have proper testamentary capacity.

If you believe that an inheritance was lost because somebody executed a Will without the proper capacity, contact us today for a free, no-obligation consultation.