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Incapacity

Incapacity

Lack Mental of Capacity

The person making a will in Texas has to have the mental capacity to do so at the time the will is executed.  That the decedent did not have the requisite mental capacity to execute a will is one of the primary challenges made for wills.

What is the Lack of Mental Capacity?

A person does not have the capacity to make a will if, at the time they executed the will, they were not of sound mind–that is, they lacked testamentary capacity.

A testator lacks testamentary capacity if any of the following were true when the will was executed:

  1. They were not able to understand the business in which they are engaged;
  2. They do not understand the effect of their act in making the will;
  3. They were not capable of understanding the general nature and extent of their property;
  4. They do not recognize their next of kin and the natural objects of their bounty; and
  5. They do not have sufficient memory to collect in their 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 form a reasonable judgment.

If the testator’s lack of testamentary capacity cannot be established by these elements, their capacity may be negated by showing that the terms of the will were produced by an “insane delusion.”

An insane delusion occurs when the testator believes in supposed facts that do not exist and that no rational person would believe. For example, Texas courts have found insane delusion when a testator believed that astronomers were on the verge of discovering the gates of heaven.

Self-Proving Wills in Texas

A self-proving will is one where witnesses provided sworn statements as to the validity of the will.  These sworn statements are attached to, and made a part of, the will itself.

A self-proving will, with proper affidavits, will supply some evidence of testamentary capacity and if otherwise unobjected to, the will may be admitted to probate without further evidence on this issue.

The affidavit may, of course, be rebutted by other evidence of lack of capacity.


Hire an Experienced Probate Attorney

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    At Kreig LLC, we understand that no two situations are the same. While we draw on decades of legal experience handling cases similar to yours, we also work to provide individualized representation that is tailored to your unique circumstances and goals. Our probate attorneys are responsive and consistently available for our clients, as well as steadfast legal advocates—both in and out of the courtroom.