Will contest and capacity needed to create and sign a will

On Behalf of | Mar 24, 2021 | Probate Litigation |

When creating a will, individuals in Texas and elsewhere will consider all the details that will go into the document. Specifically, his or her wishes when it comes to their property and who will own it after their passing. A will is one estate planning tool that is used to memorialize the wishes of an individual has regarding their property, healthcare decisions and financial decisions. While these documents are beneficial and useful at the time of ones death or if they are deem incapacitated, they are not perfect. In fact, individuals could contest a will, especially when it is believed it was not properly executed.

Capacity to create a will

Simply put, a will could be signed at any time, at any location and for any reason; however, whether an individual has the legal capacity to make a valid will, that’s completely different. In the state of Texas, there is a two-part statute that describes what legal capacity is in terms of creating a valid will.

The first part is not difficult to establish, as it is objectively verifiable. An individual must be at least 18 years of age or lawfully married or a member of the armed forces of the United states in order to make a will. The second part is not so clear, and is the source that has generated many lawsuits and will contests. An individual must be “of sound mind” to execute a valid will. However, there is no definition of this, which can make it difficult to establish.

Of sound mind

As a means to establish whether an individual was “of sound mind” when signing their name on their will, the appellate court created a five part test. First, one must have sufficient ability to understand what they are doing. In this case, that they are signing their will at the time they are signing it. Second, they must sufficiently understand the effect of signing the will. In other words, making the will effective. Third, one must have the capacity to know the objectives of the document.

Fourth, one must have the capacity to understand the nature and extent of their property. In other words, understand what accounts they have and rough estimates of their worth. Finally, one should be able to describe the big picture of the matter while signing the document. This is essentially a memory test.

When issues arise while a will is in probate, it is important to understand how to move forward. Whether you agree or disagree with the contents of a will, it is important to consider the factors that make it a valid will or not. Additionally, it is imperative to look at the entire estate plan, ensuring it was properly executed and valid.