Houston Estate Planning and Elder Law Attorney Blog
When a family member or close friend is upset by the contents of a deceased person’s will, they may contest the will’s validity. The most popular argument is to claim the will is invalid because of the person’s mental incompetence or that there was undue influence exerted upon them.
In a recent Texas appellate case, the court was tasked with determining whether the deceased’s most recent will should be admitted to probate after her sons argued their mother’s dementia meant she did not have the mental competence to execute the will. Ultimately, the court ruled that the deceased could understand she was making a will, so the will was admitted to probate—meaning the court will divide the deceased’s assets according to the will.
In this case, the deceased—before her death—created several wills over the last few years, but the last will left her estate to her one son and excluded her other two sons entirely. After her death, those sons argued this will was invalid because the deceased had dementia which made her incapable of understanding she was making a new will that would invalidate the prior ones.
What is Testamentary Capacity?
When reviewing the necessary mental competence required to execute a will in Texas, the maker of the will—called a testator—must have the sufficient mental ability to understand they were making a will and its effects and know the people she is leaving her estate to. This point of reference is called “Testamentary Capacity”. The testator must have this mental capacity on the day the will was written and executed. Generally, courts will rely on witnesses to testify about the testator’s conduct immediately before and after the execution of the will.
Here, while the testator had dementia, witnesses—including her estate planning attorney—stated that her mental state had improved at the time she executed the will, and she was making her own decisions in other aspects of her life at this time too. The attorney also remarked that the testator could explain why she wanted to change her will and did not show any signs of being disoriented. In fact, the attorney did not know the testator had dementia at this point, and the changes in her will seemed rational in light of changing family dynamics. The court determined that this testimony was sufficient to enter this will into probate.
Because family members may try and dispute a will if it is drafted right before a person’s passing, it is critical to have a will in place as soon as possible. To have the estate plan drafted correctly—and to help ensure it will not be disputed—people should reach out to experienced estate planning attorneys to help.
Contact a Houston Estate Planning Attorney
If you or a loved one is interested in creating a Houston estate plan—or have questions about the execution of a current estate plan—contact the attorneys at McCulloch & Miller, PLLC. We understand how complicated family dynamics can be, so we will walk you through the estate planning process and discuss the best way to draft your estate plan. To speak with one of our knowledgeable attorneys today and to schedule a consultation, call us at 713-333-8900.