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Contesting a Will on Grounds of Capacity


Although rare in Texas, occasionally a family member may decide to contest a Will based upon the grounds that the deceased personal lacked the legal capacity to create it. Texas courts have developed standards to judge one’s testamentary capacity.

To have capacity to create a Will, a person must be able to:

  • Comprehend the business in which he or she is participating in
  • Know the effect of the act of creating 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, as well as the claims upon the individual making the will
  • “Collect in his or her mind the elements of the business involved in transaction” and “understand them long enough to perceive their obvious relation to one another” and to formulate a “reasonable judgement about them”

However, Texas law doesn’t require the individual creating the will to be completely free of diagnoses that might affect his or her cognition or memory. For example, a person can still have capacity even if they occasionally get confused, sometimes do not comprehend their financial affairs, or even if they have been diagnosed with Alzheimer’s disease.

It is imperative to understand that Texas courts place a significant emphasis on the individual’s state of mind on the day the will was executed. Attorneys who draft wills take meticulous care at the time of the will’s execution to ask the person questions, in front of witnesses, in order to determine if the individual creating the will appears to be aware or conscious of what he or she is doing. Due to the technical and complicated process of contesting a will, you must obtain legal assistance from a qualified estate attorney.

Contact Dossey & Jones, PLLC and request a consultation with our Conroe estate planning lawyers today.

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