Signing a Last Will and Testament and Will Contest Incapacity

Did someone you know sign their Last Will and Testament without having capacity?

Inheritance is a privilege, not a right. We inform our clients that it’s the client’s decision as to how they would like their assets to be distributed upon death. A Last Will and Testament, or a properly prepared and executed Codicil to a Last Will and Testament, will determine how the client has chosen to distribute their assets upon death.

Signing Requirements

There are certain legal requirements that must be satisfied in order for a Last Will and Testament to be valid. Otherwise, a Will Contest may end up being filed after the client’s death. One of the most important legal requirements is called “Testamentary Capacity.”

The Elements of Testamentary Capacity

The distribution of property by a Will is a statutory legal right, and the Texas Estates Code and Texas case law require the testator (A.K.A., signer) to be of “sound mind.” There has been no exact, specific standard announced to establish what constitutes sound-mindedness. Rather, the measure of a testator’s mind, when questioned, is determined by the facts and circumstances of the case.

Testamentary capacity — deemed synonymous with “sound mind” — is not as much a measure of sanity, good judgment, or even common sense, as it is a measure of mental ability. The standard announced in an 1890 Texas Supreme Court case is used in almost every Will Contest case today.

A testator has testamentary capacity if he or she has sufficient mental ability at the time a Last Will and Testament is executed to:

  • Understand the business in which he or she is engaged, specifically the making of a Will;
  • Understand the effect of his or her act in making a Will;
  • Understand the general nature and extent of his or her property;
  • The natural objects of his or her bounty, in other words, know his or her next of kin; and
  • Collect in his or her mind the elements of the business to be transacted and hold them long enough to perceive their obvious relation to each other and to form a reasonable judgment.

In order to allege in a Will Contest that a Last Will and Testament was signed without testamentary capacity, there must be evidence that the person lacked the capacity to know or understand one or more of the factors listed above, which Texas Probate Courts are required to use as the “test” for testamentary capacity.

Do you need to speak with a Will Contest Attorney?

Call our office for more information on incapacity at 214-559-7202 or contact us online


Lori Ashmore Peters
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Helping Dallas area families with all of their legal Estate Planning, Probate and Business Planning needs.
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