Before a person can sign a Will, Texas law requires that they have “testamentary capacity.” This means that the person has sufficient mental ability to understand that he is making a will, the effect of making a will, and the general nature and extent of his property. He must know his next of kin and the natural objects of his bounty and the claims upon them. He must also have sufficient memory to collect in his mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them. If the person signing a Will does not meet all of those requirements then the Will is invalid in Texas.

Can a person showing signs of dementia meet these requirements? Can a person who a court determines to be incompetent enough to require the appointment of a guardian two days after signing the Will meet these requirements?

You might be surprised, but the answer in some cases is yes.

In determining whether a person had the required testamentary capacity, the pivotal issue is whether he had testamentary capacity on the day the Will was executed. Evidence of the testator’s state of mind at other times can be used to prove his state of mind on the day the will was executed if the evidence demonstrates that a condition affecting his testamentary capacity was persistent and was likely present at the time the will was executed. However, evidence from people who saw the testator the day he signed the Will and who personally witnessed the Will signing can trump evidence of previously existing dementia.

In a recent case, the Court found the testator had sufficient testamentary capacity to sign his Will after hearing the testimony of the following people who were present at the Will signing and who testified that the testator appeared normal and lucid at the signing: his attorney, the two witnesses to the Will, and the notary public.

The family members who lost property under this Will presented evidence of pre-existing dementia, a head injury, confusion, and disorientation on the part of the testator. This included medical records from doctors and nurses who observed the testator in the days preceding the date the Will was signed. However, these family members did not have evidence from anyone who talked to the testator on that specific day to contradict the evidence of four people who testified he was mentally capable at the Will signing. In addition, the nurse’s observation that he was confused at times on that day was un-persuasive to the Court and was used to support the position that if he was only confused at times then there were other times when he was not confused.

Testamentary capacity is required for a valid Texas Will. This required level of comprehension is only required at the time the person signs the Will so even a person with memory issues or temporary confusion may still be able to create a valid Texas Will before their condition deteriorates too far. If you are not sure if your family member has the required testamentary capacity, speak with a Texas Living Trust Lawyer today. And if your family member has questionable capacity, then begin working with a Texas Living Trust Lawyer to preserve as much evidence as possible.

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