In re Estate of Pilkilton, 2013 WL 485773 (Tex. App.—Dallas 2013, no pet.).

Wills

 Formalities

 

A dispute arose whether pages of a properly executed will were replaced by different (“corrected”) pages at a later date.  The appellate court agreed with the trial court that the evidence was legally sufficient to support a finding that page substitution did not occur especially because no one testified that the testator executed the will prior to all corrections being made.

 

Moral:  A prudent attorney should have the testator and the witnesses initial each page of the will.  This practice will make it easier to rebut claims of page substitution.

 

Testamentary Capacity

 

A dispute arose whether the testator had testamentary capacity.  The appellate court agreed with the trial court that the evidence was legally sufficient to support a finding that the testator had testamentary capacity.  Although there was evidence that the testator suffered from dementia, Alzheimer’s disease, and a closed head injury, the testimony of the attorney who supervised the execution ceremony, the two witnesses, and the notary was convincing in showing that the testator had testamentary capacity.

 

The court also reaffirmed the long-standing principle that testamentary capacity is based on a different standard than that used to determine whether a person is incapacitated for guardianship purposes.  The fact that a person is under a guardianship does not necessarily mean that the person lacked testamentary capacity when he or she executed the will.

 

Moral:  The most important evidence of testamentary capacity is likely to come from the individuals who were actually present during the execution ceremony: the attorney, the witnesses, and the notary.

 

Undue Influence

 

A dispute arose whether the testator was unduly influenced to make his will.  The appellate court agreed with the trial court that the evidence was legally sufficient to support a finding that the testator was not subject to undue influence.  Although there was evidence that the testator was susceptible to undue influence and certain individuals had the opportunity to exert undue influence, there was no solid evidence that any undue influence was actually exerted.

 

Moral:  Undue influence cannot be inferred merely because the testator was susceptible and individuals had the opportunity to exert the influence.

 

 



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