Le v. Nguyen, 2012 WL 5266388 (Tex. App.—Houston [14th Dist.] 2012, no pet.).


Will Contest

Testamentary Capacity


Testator executed a will on December 1, 2009 at which time his capacity was not challenged.  Testator’s condition deteriorated rapidly and later in the month, an attorney met with Testator to discuss the changes he wanted to make to his will.  The attorney returned several times to have Testator sign the new will but Testator was unable to sign.  At the end of his last visit on December 31, he left the will with Testator’s fiancée.  Later that evening, Testator executed the will in front of two witnesses.


The court first admitted the December 1 will to probate but later set aside the order and probated the December 31 will.  The proponent of the December 1 will then contested the December 31 will.  After a jury trial, the court found that Testator lacked testamentary capacity when he executed the new will.  The proponent of the December 31 will appealed.


The appellate court affirmed.  The court made a careful review of the conflicting evidence presented to the jury.  The court explained that there was “more than a scintilla of evidence supporting the jury’s finding that [Testator] did not have testamentary capacity” and that the finding was “not so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust.”


Moral:  A will proponent will have a difficult time overturning a jury finding that a testator lacked testamentary capacity.  Accordingly, a proponent needs to present the jury with convincing evidence the testator possessed testamentary capacity.