Testamentary Capacity

In re Estate of Blakes, 104 S.W.3d 333 (Tex. App.—Dallas 2003, no pet.).


Approximately 12 hours before his death, Testator executed his will. The will left property to various individuals including his children but his Wife from whom he had been separated for over a decade and Step-Son were not named as beneficiaries. Wife and Step-Son convinced the jury that Testator lacked testamentary capacity and was subject to undue influence when he executed the will.

The appellate court agreed that there was sufficient evidence to support the jury’s finding that Testator lacked testamentary capacity. Testator was in the end stages of cancer and executed the will in his hospital bed. Testimony revealed that Testator often showed signs of confusion after being admitted to the hospital several days before executing the will. The attorney who prepared the will never spoke with Testator and was not present during the will execution ceremony. Instead, the attorney drafted the will based on instructions from a friend. The court recognized that there was also evidence that Testator had testamentary capacity but the court concluded that the evidence of lack of capacity was not so weak as to make the jury’s finding unjust.

Moral: A will proponent must vigorously advocate that a testator had testamentary capacity because it will be difficult to overturn a jury finding of lack of capacity on appeal. In addition, it is essential for a drafting attorney to actually meet with the client and be present during the will execution ceremony.