Contesting a Will Based on Mental Capacity or Dementia

Estate, Trust & Fiduciary Litigation | Langley & Banack | San Antonio, Texas

A dementia diagnosis, a stroke, or a decline late in life can raise a hard question after a loved one dies: did they have the mental capacity to make the will they signed? Lack of testamentary capacity is the most common ground for contesting a will in Texas, and it is a large part of our fiduciary litigation practice. Below, San Antonio shareholders Chris Hodge and Jobe Jackson explain how mental capacity is defined, what a dementia diagnosis does and does not mean, and how these cases are proven.

On this page

• Can you contest a will if the person had dementia?
• What does it mean to have the mental capacity to make a will in Texas?
• Does having dementia automatically make a will invalid?
• What evidence is used to show someone lacked capacity to make a will?
• If two witnesses say the person seemed fine, does that settle whether they had capacity?
• How do doctors and medical records factor in to a will contest?
• What is an insane delusion, and can it invalidate a will?

Can you contest a will if the person had dementia?

Yes. Dementia is one of the scenarios we see most often in will contests in Texas. But dementia by itself does not decide the case. What matters is whether the person had testamentary capacity at the time they signed the will.

These days people are living longer, and as a result we see an increase in dementia and other mental disorders among the elderly population, conditions that can inhibit a person’s ability to reason for themselves and subject them to undue influence, or leave them not knowing what they are doing when they make a new will. One of the scenarios we see quite often is when someone has dementia or some other mental disorder, and during the course of that dementia, early on or even later, they sign a new will or some other document, or they sign one of those contracts at the bank. When that happens, capacity is the first thing we look at.

What does it mean to have the mental capacity to make a will in Texas?

In Texas, having the mental capacity to make a will, called testamentary capacity, means that at the time of signing the person understood they were making a will, understood its effect, understood the general nature and extent of their property, knew who their family members were, and had sufficient memory to hold all of those elements together and make a reasonable judgment.

Texas case law has defined what testamentary capacity is, and in a will contest a jury is usually asked whether the person met all of it at the time they signed.

1. They have to understand the business in which they are engaged. They have to understand that they are making a will.
2. They have to understand the effect and the act of making the will, that the will controls the disposition of their assets when they pass away.
3. They have to understand the general nature and extent of their property. Not down to the penny, and not the legal description of the land, but they have to understand in general what they own, so that they could decide in their will, I want this that I own to go to this beneficiary.
4. They have to know who their family is. They have to know their next of kin and the natural objects of their bounty, which is sort of the archaic way of saying they have to know who their family is.
5. This is so often the problem in the cases we deal with: they have to have sufficient memory to collect in their mind the elements of the business to be transacted and to hold them long enough together to perceive their relation to one another. That is a long way of saying they have to be able to remember all of these elements at the same time and make a reasonable judgment about them at the time they sign.

Does having dementia automatically make a will invalid?

No. Having dementia does not automatically make a will invalid in Texas. Capacity is judged at the time the will was signed, so a will can stand if the person met the standard at that moment, or be set aside if they did not.

It all hinges on the moment of signing, because all of this has to be met at the time the will is executed. That is why we do not stop at the diagnosis. We have had cases where, after reviewing the medical evidence, the conclusion is that the person did have testamentary capacity, but they just crossed the finish line barely, and they were in such a diminished state that they were still susceptible to undue influence even though they had capacity. The two often travel together.

Related: Contesting a Will Based on Undue Influence

What evidence is used to show someone lacked capacity to make a will?

Proving a lack of capacity usually takes circumstantial evidence pulled from many sources: medical records, testimony from people who knew the person, financial and business records, their medication history, and often an expert opinion. The goal is to put the person’s life back together for the time around when they signed the will.

The standard is about a single moment, but to prove what that moment looked like, we essentially have to put their life back together for the relevant time period. Basically everything they did comes into play. How did they transact business? How did they conduct themselves on a daily basis? Were they able to drive? Were they able to continue to write checks? How was their memory? What types of medications were they on?

A lot of that comes from documents: bank records, tax returns, a medication list from a pharmacy, doctor’s reports, and other medical records. A lot of it comes from people, too. Any interaction the decedent had with another person in their life can be relevant. If the decedent interacted with neighbors regularly, you are going to want to talk to the neighbors. Were those normal interactions, or, in the case of at least one of our cases, did the decedent answer the door naked and act strangely? Those are the kinds of things that paint the picture of whether someone had capacity on the day they signed.

We also look at the physical condition of the decedent and whether there were any corresponding mental repercussions. If somebody has had a heart attack, or a loss of oxygen to the brain, that can have an effect on their mental capacity. We look at their age, any substance abuse problems, their education, and whether they spoke a different language than the will was written in. And we look at the will itself. Sometimes there are erroneous statements of fact, like a description of property the decedent never owned, or a house they say is located in a Texas city that does not exist and may be in Wisconsin. That can be evidence that at the time they signed, they did not know the nature of their property.

If two witnesses say the person seemed fine, does that settle whether they had capacity?

No. Even if the two witnesses to the will say they were there and thought the person was of sound mind, that is not conclusive. Texas does not presume a person had testamentary capacity just because a will was signed and witnessed.

Say the will has two witnesses who saw the person sign it, and they are even willing to testify that they were there at the time and thought the person was of sound mind. Is that conclusive? No. People are often surprised to learn that there is not a presumption of testamentary capacity when a will is offered for probate. A jury is able to hear from fact witnesses, the people who knew the person or witnessed the will, and from expert testimony, and then weigh all of it together.

How do doctors and medical records factor in to a will contest?

Medical records are central to a capacity case. Because treating doctors are often hard to bring to trial, a forensic psychiatrist usually reviews the person’s records and gives an opinion on their capacity. Texas law allows these records to be obtained in a will contest where capacity is at issue.

Over the relevant time frame, most people have seen a number of doctors or other medical professionals, and when you go see a doctor, medical records are created. It is not always feasible to have all of these doctors come in and testify at trial, because doctors are very busy and it is hard to get them there. So the way you accomplish it is by getting their medical records and then having an expert forensic psychiatrist review those records and come up with an opinion about whether the person had testamentary capacity. Because that kind of information is so relevant, the Texas Legislature made a provision in the Estates Code that allows for the discovery of these records in a will contest where someone’s capacity is at issue.

What is an insane delusion, and can it invalidate a will?

An insane delusion is a belief in supposed facts that do not exist and that no rational person would believe. If that delusion is what caused the person to change their will, it can be a basis for setting the will aside. It is less common than the other grounds and is usually tied to a medical condition of the brain.

In Texas, cases have defined an insane delusion with two elements. The first is the belief of supposed facts that do not exist, and the second is that no rational person would believe them. It is not enough that someone believes in something that does not exist. It has to be something that no one would ever believe. In fact, proving that no rational person would believe it usually requires evidence of a brain defect or a functional disorder of the mind, so it is usually tied to a medical issue. If someone has an insane delusion and that is what caused them to change their will, then that could be a basis for contesting and setting aside the will.