During the past several decades, Texas has experienced a tremendous influx of retirees fleeing the taxes and weather of other states. Indeed, Texas has one of the highest concentrations of “mature” citizens in the United States. Some are careful managers of their financial affairs; others are not. It is not at all uncommon for survivors to find a recently executed will among the deceased’s personal papers. The document’s provisions may be surprising – individuals and unusual “charities” no one in the family has ever heard of may receive significant devises. A legitimate question arises: Was grandmother out of her mind?

Contesting The Will on Grounds of “Capacity”

In some instances, the family may chose to contest the will based upon their contention that the deceased lacked the legal capacity to make it. Texas courts have established standards to judge one’s testamentary capacity. Generally speaking, in order for a will to be adjudged a valid instrument, the person making it must:

  • Understand the business in which he or she is engaged.
  • Understand the effect of the act in making a will.
  • Understand the general nature and extent of his or her property.
  • Know his or her next of kin and the natural objects of his or her bounty, and the claims upon the person making the will.
  • “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 about them.”

Person Need Not Be Completely Free of Medical Issues

It is important to remember that Texas law does not require the person making the will to be completely free of diagnoses that might impact his or her memory or cognition. Accordingly, It isn’t enough to be able to show that grandmother sometimes was confused, occasionally did not understand her financial affairs, or even that she had been diagnosed with some form of dementia. Texas courts place great emphasis on the person’s state of mind on the day the will was executed. That is why many attorneys who draft wills take great care at the time of the will’s execution to ask the person questions, in front of the witnesses, so as to discern whether the person making the will appears to be aware of what he or she is doing.

Expert Medical Evidence May Be Necessary

In judging the will’s validity, the court will take a number of factors into consideration. It may be necessary for the contesting members of the family to provide expert medical evidence as to the person’s mental capacity at the time when the will was executed. Again, care has to be taken. It will not ordinarily be enough to show that the person sometimes was confused.

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Experienced Legal Counsel Is Crucial in Contesting a Will

Contesting a will is a technical, sometimes complicated, process that requires the guidance of an experienced estate attorney. Not only is it important to seek counsel from a firm that understands the complex law of Texas wills and estates, but the contesting parties need a firm that is experienced in litigation.

The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients. We represent clients in all types of transactions, including estate planning, will preparation, and the creation of appropriate trust documents. We also have extensive litigation experience and can take your will contest as far as necessary. At Romano & Sumner, we pride ourselves not only for our professionalism, but also for our client service. We know that each situation is unique. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.