Castello v. Estate of Castello, No. 03-22-00012-CV, 2023 WL 4139038 (Tex. App.—Austin June 23, 2023, no pet. h.).
The trial court granted summary judgment that there was no genuine issue of material fact regarding the testator’s testamentary capacity. The appellate court reversed. A key fact was the contestant disputed testamentary capacity before the will was admitted to probate thus leaving the burden of proof on the will proponent, rather than with the contestant. Accordingly, merely because the will had a self-proving affidavit was insufficient to prove capacity. The contestant had evidence which placed capacity in doubt and thus a fact issue existed precluding summary judgment that the testator had testamentary capacity.
Moral: If possible, a will contestant should file a contest prior to the will being admitted to probate so that the burden of proof for all elements of a valid will remain on the proponent.