In re Estate of Vackar, 345 S.W.3d 588 (Tex. App.—San Antonio 2011, no pet.).

Wills & Durable Powers of Attorney


Lack of Testamentary Capacity


Brother executed a will after a serious accident leaving all of his property to Sister and omitting his Wife and Son, both from whom he was estranged. After Brother’s death, Wife and Son contested the validity of Brother’s will leaving his entire estate to Sister and naming Sister as his agent under a durable power of attorney. The jury found that Brother lacked testamentary capacity and Sister appealed.

The appellate court reversed. The court first addressed the issue of whether certain medical records which could have supported the finding of lack of capacity were properly admitted into evidence. Because the proper predicate was not laid, these records could not support the jury’s finding but that one record could be considered because Sister waived her objection. The court then examined the other evidence and found that it was insufficient to support a finding of lack of capacity and that the jury’s finding otherwise was against the great weight and preponderance of the evidence. Instead, the evidence showed that Brother had capacity when he executed his will and durable power of attorney.

Moral: Although difficult to do, it is possible to overturn a jury finding of lack of capacity on appeal if the evidence upon which the jury relied was extremely weak.


Other Matters

Life Insurance


Sister was named as the beneficiary of Brother’s life insurance policy. Because the policy was purchased with community property, both the trial and appellate courts held that the gift was unfair even though Brother and Wife had been living apart and estranged for many years. “A surviving spouse establishes a prima facie case of constructive fraud on the community with proof that the life insurance policy was purchased with community funds for the benefit of a person outside the community.” Vackar at 598. To determine whether the gift was fair, the court considered “(1) the size of the gift in relation to the total size of the community estate; (2) the adequacy of the estate remaining to support the surviving spouse in spite of the gift; (3) the relationship of the donor to the donee; and (4) whether special circumstances existed to justify the gift.” Vackar at 598.

Moral: When a spouse names a non-spouse as the beneficiary of a life insurance policy purchased with community funds, the other spouse’s consent should be obtained to prevent claims that the beneficiary designation is unfair.