The Law Offices of T. Jeremy Watson

A will can be challenged if the testator lacked "testamentary capacity" at the time the will was signed. Testamentary capacity is similar to “mental capacity,” but the mental capacity required to make a valid will may be much different from the definition of mental capacity used in other areas.*

These are the elements of testamentary capacity in a will contest in Texas Stated another way, in order to have “testamentary capacity” in Texas a testator must have sufficient mental ability, at the time of executing the will:

(1)   to understand that they are making a will;

(2)   to understand that the purpose of making a will is to control how their property will be distributed at their death;

(3)   to understand the general nature and extent of any personal property, real estate, financial accounts, and any other property they may own;

(4)   to know the testator’s next of kin and other family members; and

(5)   to have sufficient memory to hold all of this in their mind long enough to put these pieces together so that they can form a reasonable judgment as to what they wish to do with their estate.

A person cannot have “testamentary capacity” if he or she is laboring under an insane delusion and if the terms of his or her will are influenced by the insane delusion. An “insane delusion” is the belief of a state of supposed facts that do not exist, and which no rational person would believe.

* REMEMBER: Just because a doctor decided for himself that a person was competent enough to sign their own consent to medical treatment does NOT necessarily mean that person had "testamentary capacity."

Sufficient mental ability to understand that one is making a will, the effect of making a will, and the general nature and extent of one's property. The person making the will must also know the natural objects of his or her bounty, the claims upon them, and have sufficient memory to collect in his or her mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them.