Testamentary Capacity

In re Neville, 67 S.W.3d 522 (Tex. App.—Texarkana 2002, no pet.).


The jury found that Testatrix lacked testamentary capacity when she executed a will in 1998 and thus the trial court admitted Testatrix’s 1992 will into probate. Proponents of the 1998 will appealed on the basis that there is direct evidence that Testatrix had capacity on the date she executed the 1998 will.

The appellate court affirmed. Proponents asserted that the Supreme Court of Texas case of Lee v. Lee, 424 S.W.2d 609 (Tex. 1968), should be interpreted as prohibiting the consideration of evidence of a testatrix’s mental condition before or after the signing of the will if there is direct evidence of the testatrix’s mental soundness on the actual date of will execution. The court rejected this analysis stating that “[i]t has always been the rule in Texas that, although the proper inquiry is whether the testator had testamentary capacity at the time he executed the will, the court may also look to the testator’s state of mind at other times if those times tend to show his state of mind on the day the will was executed. Evidence pertaining to those other times, however, must show that the testator’s condition persisted and probably was the same as that which existed at the time the will was signed.” In re Neville at 525.

The court examined the evidence, such as testimony from doctors that Testatrix had a brain tumor which adversely affected her mental soundness at all times. This evidence, the court concluded, was sufficient to support the jury’s finding that Testatrix lacked capacity even though Proponents presented the testimony of several individuals which tended to show that Testatrix had capacity on the date she executed the 1998 will.

Moral: A proponent of a will may need to present evidence of the testator’s capacity not just on the date of will execution but with regard to surrounding time periods as well.