Lack of Testamentary Capacity in Texas Will Contests

by Russell Aldrich | January 31, 2023

In Texas, will contests frequently allege that a will is invalid because the testator (the person making the will) lacked the testamentary capacity necessary to make a valid will. In this firm’s experience, lack of testamentary capacity is one of the two most common complaints we receive from clients wanting to contest a will in court (the other being undue influence).

Testamentary capacity refers to the legal requirement that a testator must have the ability to understand the nature and effect of making a will and the property being disposed of at the time the will is executed. Texas law provides that a testator must have testamentary capacity for a will to be considered valid, enforceable, and capable of being admitted to probate. In other words, for a will to be valid the testator must have been of “sound mind” at the time they executed the will.

If a person cannot prove that a testator had testamentary capacity at the time the will was executed, the will cannot be admitted to probate. Conversely, if a person contesting a will can prove that the testator lacked testamentary capacity at the time they executed the will, then the court will declare the will invalid and refuse to admit it to probate (or, if the court has already admitted the will to probate, then they will issue an order revoking the earlier order probating the will).

What is testamentary capacity?

Almost daily, this firm receives calls from prospective clients wanting to contest the will of a recently deceased loved one on the basis that said loved one “did not know what they were doing” when the signed the will. What this translates to, in legal terms, is an allegation that the testator lacked the testamentary capacity to make a will at the time of its execution. In Texas, standard for testamentary capacity is whether the testator had the ability to understand the nature and effect of the will, as well as the nature and extent of the testator’s property at the time the will was executed. This standard was first defined in Prather v. McClelland, a seminal Texas Supreme Court decision from over 100 years ago. The court in McClelland held that:

“[T]he testator must have been of sound mind at its execution, and by this is meant that he must have been capable of understanding the nature of the business he was engaged in, the nature and extent of his property, the persons to whom he meant to devise and bequeath it, the persons dependent upon his bounty, and the mode of distribution among them; that he must have had memory sufficient to collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relations to each other, and be able to form a reasonable judgment as to them.” Prather v. McClelland, 13 S.W. 543, 546 (Tex. 1890).

Breaking down the McClelland decision, the elements for testamentary capacity in Texas are:

1. Nature of the business in which one is engaged. The testator must understand that they are making a will and that the act is testamentary in nature; that is, they must understand that the will makes a disposition of property upon the testator’s death.
2. Nature and extent of one’s property. The testator must have an approximate idea of their value of their property and the specific assets which they own. See Tieken v. Midwestern State Univ., 912 S.W.2d 878 (Tex. App. — Fort Worth 1995, no writ).
3. Natural objects of one’s bounty. This refers to those individuals who the testator should “naturally” want to benefit from their will; under normal circumstances, these persons would comprise the testator’s closest family members or next of kin. See Thomas E. Atkinson, Handbook of the Law of Wills 232 (W. Publ’g Co. 2d ed. 1953).
4. The mode and manner of distribution. The testator must understand what and how much each beneficiary will receive from their estate. In other words, the testator must understand the specific property and/or fractional share of their estate that they are leaving to each beneficiary named in the will.
5. Memory requirement. The testator must have sufficient memory to be able to hold all of the above elements in their mind for long enough to relate them to one another and form a judgment. See Lowery v. Saunders, 666 S.W.2d 226, 232 (Tex. App. — San Antonio 1984, writ ref’d n.r.e.) (testator must have “sufficient memory to collect in her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other, and to be able to form a reasonable judgment as to them”).

What factors do courts in Texas consider when determining testamentary capacity?

Texas probate courts consider several factors when determining testamentary capacity, including the testator’s age, mental state, medical history, and whether the testator was under the influence of drugs, alcohol, or medications at the time the will was executed. Testamentary capacity can also be inferred by the testator’s behavior at or around the time they executed the will. For example, evidence that the testator could no longer drive because they could not remember how to get home could be used as evidence that the testator lacked testamentary capacity if it occurred at or around the time of the will’s execution. Another example might be if the testator stopped paying their bills after many years of on-time payments during the same month in which they executed the will.

There is no “smoking gun” that can be used to prove testamentary capacity or a lack thereof; rather, a probate court will consider all available evidence and determine whether it is more likely than not that the testator had the legally required testamentary capacity at the time they executed the disputed will. Indeed, evidence that the testator was old, sick, or physically weak is insufficient, in and of itself, to prove that the testator lacked testamentary capacity. See Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. — Houston [1st Dist.] 1980, no writ). Nor is evidence of heavy drug or alcohol use dispositive on the issue of testamentary capacity, especially when countered by other evidence that the testator could adequately manage their business and financial affairs. See Specia v. Specia, 292 S.W.2d 818 (Tex. Civ. App. — San Antonio 1956, writ ref d n.r.e.).

Testamentary capacity is only required at the moment the testator executed the will

Texas courts have consistently held that a will is valid so long as a testator had sufficient testamentary capacity at the time of the will’s execution. A testator with a mental illness, such as Alzheimer’s Disease, or who is under the influence of drugs, alcohol, or medication that adversely affects their mental acuity, can nevertheless possess testamentary capacity if they are able to understand the nature and effect of the will and the property being disposed of at the time the will was executed (see the McClelland elements above). Probate courts in Texas refer to these moments of clarity in which a testator who otherwise lacks testamentary capacity can execute a will as “lucid intervals.” See In re Estate of Trawick, 170 S.W.3d 871 (Tex. App. — Texarkana 2005, no writ).

Because it must only be proved that the testator had testamentary capacity at the moment they executed the will, often the best evidence of testamentary capacity is the testimony of the witnesses present at the time of the will’s execution. In Texas, a will must be signed by two subscribing witnesses in the presence of the testator for it to be valid. Many wills are also notarized to make them self-proved, and, when an attorney drafts a will, they will also normally be present to oversee its execution to ensure that it complies with the requirements outlined in the Texas Estates Code. In routine will executions, therefore, there are four witnesses – two subscribing witnesses, the notary, and the drafting attorney – who will be able to testify as to the testator’s capacity during the pivotal moment in which the will is signed. In cases where a testator anticipates that a difficult family member may try to contest the will after their death, they may request the presence of additional witnesses or a videographer to film the execution as additional proof that the testator signed the will while possessing the requisite testamentary capacity.

It is always recommended to seek legal advice from an attorney with experience in probate litigation when contesting a will based on lack of testamentary capacity. The attorneys of the Aldrich Law Firm, PLLC, have successfully litigated will contests alleging lack of testamentary capacity in San Antonio, Bexar County, and throughout Texas. If you believe that the will of a deceased family member is invalid due to a lack of testamentary capacity, then please do not hesitate to contact us for a consultation to discuss your case.