To make a valid will, the testator must be of sufficient age and sound mind aka testamentary capacity.
When someone executes a will, he or she must have “testamentary capacity,” meaning the mental capacity to understand the nature of the act. Without testamentary capacity to make a will, the will could be found invalid in a later will contest in court.
Texas law has two main requirements for testamentary capacity: age and sound mind. For the age requirement, the testator must be at least 18, be or have been married before, or be in the U.S. military.
The testamentary capacity sound-mind requirement is a much more difficult issue to determine and is frequently the object of a will contest. Texas courts have decided many cases that shed light on what it means to have a sound mind for testamentary purposes. According to Texas case law, the testator must understand and have sufficient mental capacity to:
- Understand his or her business
- Understand his or her property
- Understand the effect of executing a will
- Know the people to whom he or she wants to leave property as well as those people who are dependent on him or her for support
- Be able to sustain a reasonable, working understanding of the will-making process throughout the execution
Similar to that of other states, Texas law does not require that to have a sound mind the testator be completely free of diagnoses that could impact memory or cognition. For example, even if he or she has dementia or a brain injury, what matters is that at the time of making the will, he or she has requisite understanding of the required elements. If symptoms that limit mental capacity come and go or vary in intensity, so long as he or she is lucid enough at the time of making the will, testamentary capacity can be present and the will valid.
Being of a sound mind also does not require superior intelligence or young age. The perception and understanding needed to make a valid will can be present at an average or lower level of intelligence and old age.
In a will contest, evidence relevant to the question of sound mind could be presented through the testimony of a mental health or medical professional, a lawyer who assisted with the will drafting and execution, a witness to the process or anyone else who interacted with the testator around the time of execution who observed indications of requisite mental capacity.
An interesting aspect of testamentary capacity is that even if a person suffers from delusions, so long as the delusions do not interfere with understanding the particular things necessary for testamentary capacity, sound mind may still be found for purposes of ability to make a will. Often, a Will contest will claim lack of testamentary capacity and undue influence, with the theory being that someone who lacks testamentary capacity may be more likely to execute a will with the urging of another person (influencer).
Anyone considering contesting a will based on lacked testamentary capacity of the maker or defending against a will contest on this basis should speak with an experienced lawyer about the circumstances and applicable law, and for advice, representation and advocacy.