How To Prove Lack of Testamentary Capacity in Texas

In Estate of Durgin, the Texas appellate court upheld a verdict invalidating a will for lack of testamentary capacity.  The case gives insight into how to prove lack of testamentary capacity in Texas.

What is required to have testamentary capacity in Texas?

A testator must be of sound mind to make a will.  That is, a testator must have testamentary capacity.  Testamentary capacity means:

Sufficient mental ability, at the time of the execution of the will, to understand the business in which the testatrix is engaged, the effect of her act in making the will, and the general nature and extent of her property. Additionally, the testator must know her next of kin and the natural objects of her bounty, and the testator must have a sufficient memory to collect in her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other and be able to form a reasonable judgment about them.

The Facts

In Durgin, decedent’s grandchildren challenged decedent’s July 25, 2007 will.  The grandchildren asserted that their grandmother, among other things, lacked testamentary capacity. After hearing the evidence, the jury determined that the decedent lacked testamentary capacity at the time she signed the 2007 will.  The appellate court upheld the verdict.

The Evidence of Lack of Testamentary Capacity

The parties presented the following evidence that led to the finding that decedent lacked testamentary capacity under Texas law:

• Testimony that decedent had “no clue what was going on at all” at her husband’s funeral just six weeks before executing the 2007 will
• Testimony that decedent believed that her husband was still alive, all the way up until decedent’s death in 2015
• Testimony that when decedent’s husband died, decedent “wasn’t there.  She wasn’t of sound mind.”
• Testimony that decedent could not remember the names of people she saw at decedent’s husband’s funeral

Decedent’s medical records were admitted into evidence.  No physician testified regarding the medical records, and the jury was left to read and interpret the records without the aid of a testifying physician.  The medical records in 2007 revealed that Decedent:

• Experienced depression, memory loss, and confusion
• Had trouble with short term memory
• Occasionally wakes disoriented
• Repeats conversations
• Had a history of “spells” that tend to happen in the fall
• Had progressively worsening memory.
• Had periods of disorientation
• Sometimes does not recognize her family upon waking
• Would likely need a change in her living environment with closer supervision

Medical records from just a few days after the execution of the 2007 will indicate that Decedent:

• Had worsening dementia
• At one appointment was noted to be “disheveled, awake, forgetful, and answers questions but does not remember what she is told.”
• Was admitted to the hospital with a “chief complaint of sudden onset of disorientation and confusion and mental status changes… she had been at home and was noted to defecate and displayed marked confusion.”
• Was noted to have loss of interest in activities of daily living.
• Needed help with dressing and bathing.

In light of the evidence, the appellate court determined that the jury could have inferred that decedent lacked testamentary capacity under Texas law:

The evidence that decedent had a history of memory loss, confusion, and disorientation, including the failure to recognize her son at times, indicates that decedent did not have sufficient mental ability, at the time she executed the will, to understand her business, the effect of her act in making the will, or the general nature and extent of her property.

One key point to note is that the evidence of decedent’s state of mind is from the time period surrounding the execution of the 2007 will.  None of the medical records were from the actual date of the execution of the will.  This is common. Medical records from the time period surrounding the execution of the challenged document can establish the testamentary capacity on the actual date the document was signed. This case had substantial evidence of lack of capacity, and is a good primer on how to prove lack of testamentary capacity in Texas.