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  • By: Farren Sheehan, Esq.
  • Published: November 11, 2017

A Will is a valuable legal document that designates who will receive property of a testator when he dies. Under Texas law, an adult may draft a Will at any time, as long as he meets the legal requirements when executing the Will. One important requirement is that the testator was of sound mind (or had testamentary capacity) when signing his Will. This issue usually comes up after the testator’s death when a person challenges a Will in a Will contest. In this article we will discuss what is needed for testamentary capacity under Texas law. When obtaining the advice of a probate attorney such as Austin probate lawyer Farren Sheehan in drafting a Will, a probate lawyer can ask questions and make sure that testamentary capacity is in place at the time her client executes the Will.

Advantages Of A Will

A testator is a person who leaves a Will upon his or her death. A Will is a written, legal document that goes into effect upon the testator’s death and states how the testator would like his property distributed. In addition to naming beneficiaries to receive the estate, a Will can also designate individuals to care for children, set up trusts to manage property for others, and name an executor to probate the Will.

In order for a Will to be valid, one of the requirements is that at the time of execution, the testator must have been of sound mind to execute a Will. Often this is a fact question that comes up in a Will contest in probate court after the testator dies. If an heir or creditor believes the testator was not of sound mind when executing the Will offered for probate, she may challenge the Will for lack of testamentary capacity.

Basic Requirements For Testamentary Capacity

Texas courts have established a set of standards for testamentary capacity. Under Texas law, testamentary capacity means that a person must have sufficient mental ability to:

  • Understand the business in which he is engaged;
  • Understand the effect of the act in making a Will;
  • Understand the general nature and extent of his property;
  • Know his next of kin and the natural objects of his bounty and the claims upon him; and
  • Collect in his mind the elements of the business to be transacted and hold them long enough to perceive their obvious relation to each other and to form a reasonable judgment about them.

The condition of the testator’s mind on the day the Will is executed is most important. Evidence of incapacity at other times may be used to establish incapacity on the day the Will was executed if the evidence shows that the person had a condition that was persistent and probably was affecting the testator on the day he signed his Will. Probate courts deciding testamentary capacity will review many facts, often including medical evidence of the person’s mental state and testimony about the person’s demeanor and how he responded to questions and acted on the specific day he signed his Will.

How A Probate Attorney Can Help

Will contests can be expensive and stressful for a family. Often those challenging the Will were beneficiaries of a previous Will that were not named in a new Will, or are family members that were left out and felt they should have been included. The parties must gather sensitive medical information of the testator and a substantial amount of evidence to prove the testamentary capacity.

A probate attorney will make sure that the language used in a Will effectively distributes the property according to the person’s wishes. At the time of signing, the probate attorney can ensure that the Will is executed properly so that it will hold up legally during the probate process with minimal cost and time. She will ask questions and make sure that the testator was of sound mind at the time of execution.

It is advisable to see an attorney to help draft and execute a Will so that family members can easily and quickly distribute the estate once a person passes away with minimal trouble. If you have questions about Wills or testamentary capacity, please contact Austin probate attorney Farren Sheehan for a consultation.


If you have any questions about testamentary capacity for a Will in Texas or anything else regarding Texas probate law, please do not hesitate to contact us by phone at (512) 355-0155 for an initial consultation. Other contact information is listed in the upper right-hand area of this page, and a contact form is also available on our contact page.

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