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Testamentary Capacity

Testamentary Capacity

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

An area of concern experienced by many persons who visit my office involves determination of when a person has sufficient testamentary capacity to make a will and when they do not.

Pursuant to Estates Code §251.001, there is a two-part test to determine testamentary capacity.

The first portion of the test is a simple status and age requirement and is usually fairly easy to prove.  The intended testator must be at least eighteen years of age or be lawfully married or be a member of the armed forces of the United States or the auxiliaries thereof or be a member of the maritime service.

The second portion of the test is more problematic and requires that a testator be of “sound mind.”  The litigation sometimes triggered by this requirement revolves around the definition of sound mind together with an understanding of what is not part of the definition of sound mind.  The concern about this element of the test ends up being very subjective in nature and therefor is open to different interpretations.

Rebuttable presumption of capacity – The law assumes that an adult person who has not been legally adjudicated as incapacitated is capable of making a will.  The burden of proof falls upon the person, if any, who is questioning the competence of the testator regarding capacity to make a will.

Elderly are not presumed to lack capacity. – Many people (usually very young ones) make the false assumption that just because someone has achieved the status of having advanced years, they are no longer competent.  Such an assumption is not supported by law.  The law will not shift the burden of proof from the person questioning capacity to the testator’s representative to prove capacity.

Even temporary incompetence will not prove lack of competence on the day of the will.  A person may be incompetent at one time but competent at a different time. Dubree v. Blackwell, 67 S.W.3d 286 (Tex.App.—Amarillo 2001).  The Court determined in the Dubree case that even though a person might suffer from a degree of diminished capacity, they can still have “lucid” clear moments.

What is required for capacity?  The law has been fairly clear on this point in Texas for many years and with few refinements for the past 130 years. (Prather v. McClelland, 13 S.W. 543(Tex. 1890)).  The five-part analysis offered in that case has the person contesting the will try to prove the falsehood of one or more of these factors while the proponent of the will attempts to show that each of the five factors did “in fact” exist at the actual time of the will signing.

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  • Sufficient ability to understand the business in which he is engaged;
  • Sufficient ability to understand the effect of his act in making the will;
  • The capacity to know the objects of his bounty;
  • The capacity to understand the general nature and extent of his property;
  • 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 relation to each other, and to be able to form a reasonable judgment as to them.

Testamentary Capacity vs. Contractual Capacity – It is safe to say that it is commonly accepted that it takes less mental capacity to make a will than it takes to enter into a contract.

Some of the scholars regarding this truth have rationalized that the testator’s duty is less in signing a will because he need not take into consideration the effect that signing the will may have on his/her life.  This logic argues that because the testator will no longer be living at the time that the will takes effect, and that because he/she shall always have the right to revoke the will, the burden of competency is “in fact” less.

In my own practice, if there is an obvious or at least reasonable expectation of a contest being filed due to the possible allegation of “lack of capacity,” we attempt to make notes on the record.  Although this firm does not hold itself out to have any type of expertise in the diagnosis of mental acuity, we do have an ability to conduct conversations with the testator which can reveal the elements outlined in the Prather case quoted earlier.   If the person who is making the will can discuss their families with me and know to whom they are leaving their property and why, it is believed that notes to the file regarding those conversations could be very valuable down the road if a contest is filed.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see –

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