Texas Capital Bank v. Asche, No. 05-15-00102-CV, 2017 WL 655923 (Tex. App.—Dallas Feb. 17, 2017, pet. dism'd).



Lack of Capacity


The trial court determined that the testator lacked capacity to execute multiple estate planning documents over a period of time spanning over a decade. In addition, the trial court found that the testator was subjected to undue influence.


The appellate court made an exhaustive review of the evidence which included both medical and lay testimony. Although there was “unquestionably conflicting evidence” about testator’s capacity, the court explained that it may not substitute its judgment for that of the jury. The court then concluded that the evidence was legally and factually sufficient to support the jury’s finding that the testator lacked capacity. Accordingly, the court did not need to address the undue influence issue.


Moral:  Once a jury determines a testator’s capacity to execute a will, it will be difficult to have that finding overturned on appeal unless the jury’s finding is against the great weight of the evidence.





The trial court determined that a settlor lacked capacity to create a trust. However, the contestant failed to join the trustee of the trust as a party. Accordingly, the appellate court reversed because “[i]t is well established that suits against a trust must be brought against its legal representative, the trustee.” The fact that the same entity was a party to the lawsuit as the settlor’s executor was insufficient as “[e]xecutor and trustee are separate and distinct capacities.”


Moral:  A trust is not a legal entity that can sue or be sued. In any action involving a trust, the trustee in his/her/its representative capacity must be made a party.