In re Estate of Hemsley, 460 S.W.3d 629 (Tex. App.—El Paso 2014, pet. denied).


Testamentary Capacity


After the probate court determined that Testator had testamentary capacity, Contestants appealed. The appellate court affirmed. The court studied the evidence which included testimony of the attorney who drafted Testator’s power of attorney who declined to draft the will fearing a contest due to Testator’s celebrity status (e.g., the character of George Jefferson from All in the Family and The Jeffersons) as well as the attorney who eventually prepared the will. This attorney had no doubt that Testator had full testamentary capacity. The two witnesses and a registered nurse caring for Testator testified in a similar manner. Nonetheless, Contestants claimed that this evidence was legally insufficient.


Moral:  Regardless of how competent a person is at the time of will execution, family members dissatisfied with the terms of the will are likely to contest the will, especially if the estate has substantial value.



Disposition of Body


Decedent did not specify a person to control the disposition of his remains under Health & Safety Code § 711.002. A dispute arose between Half-Brother and Testator’s Friend who was also the sole beneficiary and executor of his will. The trial court determined that the Friend’s instructions prevailed and Half-Brother appealed.


The appellate court concluded that the issue was moot and thus it could not render a decision regarding whose instructions had priority. Half-Brother did not suspend the trial court’s judgment for the period of the appeal allowing Friend to have Testator buried. Whether Half-Brother can have Testator disinterred and buried elsewhere was not an issue before the court.


Moral:  A person should execute an Appointment of Agent to Control Disposition of Remains so that the individual the person wishes to control the disposition has clear legal authority to do so.