Testamentary Capacity

In re Estate of Trawick, 170 S.W.3d 871 (Tex. App.—Texarkana 2005, no pet.).


Testatrix executed her will naming niece as the sole beneficiary and executor. Grandchildren filed a will contest claiming that Testatrix lacked testamentary capacity or was subject to Niece’s undue influence. The jury determined that Testatrix had testamentary capacity and Grandchildren appealed.

The appellate court affirmed. The court determined that the evidence was factually sufficient to support the jury’s finding of testamentary capacity. The court began its analysis by explaining that because Grandchildren contested the will after its admission to probate, they had the burden to show lack of capacity and to show that the jury’s finding was against the great weight and preponderance of the evidence. The court recognized that there was some evidence which would tend to show lack of capacity. For example, Testatrix was 92 years old, spoke of deceased persons as if they were still alive, sometimes was confused about the date of her beauty shop appointment, hid items in her home, and sometimes had difficulty recognizing people. But, the jury was free to decide that testimony of the lawyer who drafted the will, the attesting witnesses, and notary, along with the testimony of her friends and acquaintances that Testatrix appeared to know what she was doing had greater weight.

The court also rejected Grandchildren’s claim that the testimony of an expert was improperly admitted because any objections were waived by their failure to object timely.

Note: The court addressed the testamentary capacity issue “in the interest of justice” even though Grandchildren had not properly briefed the issue.

Moral: Merely because a person is old or acts in an eccentric or bizarre manner is not enough to conclusively show lack of testamentary capacity. A will contestant will have a difficult time showing that a jury’s finding of testamentary capacity is so against the great weight and preponderance of the evidence to be clearly wrong and unjust.