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Testamentary Capacity.

Posted by Chris Peterson | Jun 20, 2014 | 0 Comments

Testamentary Capacity

Testamentary CapacityCreating a will in Texas that is legally binding requires a number of things, one of which is testamentary capacity. The term refers to the mental capacity of the creator of a will at the time it is written. An Estate Planning Lawyer in College Station can tell you that questioning a person's soundness of mind can be the basis for overturning a will, trust, deed, or other document.

What Exactly Is Meant by “Sound Mind”?

Having the necessary testamentary capacity to understand what you are doing and all that it entails is synonymous with being of sound mind in estate matters. The requirements for proving this are not the same, however, as the use of this term in other areas of law, such as in a criminal case. Indeed, the fact that you are deemed able to make decisions about your medical treatment does not necessarily mean that you have sufficient testamentary capacity to execute a will, at least as state law sees it.

What Elements Must Be Proven?

An Estate Planning Lawyer in College Station can help you understand the elements used to judge testamentary capacity. In essence, to succeed in a challenge to your soundness of mind you may need to:

  • Show that you understand the nature of your property.
  • Correctly identify your relatives.
  • Have a generally reasonable understanding of things.

As some individuals grow older they begin to suffer from dementia; others may fall victim to Alzheimer's. In such cases the matter of soundness of mind will be fairly easy to prove. It is important to keep in mind, however, that these and less clear-cut challenges are rather subjective in nature. For instance, a person diagnosed with Alzheimer's may yet retain enough understanding of his property to create a will.

Other requirements for soundness of mind, however, are by their nature objective. These include the following:

  • The individual must be at least 18 years of age, or
  • Be lawfully married, or
  • Have been lawfully married previously, or
  • Be a member of the armed forces.

It is not likely that a challenge under these requirements will be brought.

How Is Testamentary Capacity Proven?

A challenge may be brought while the testator is alive, but often this occurs after death during probate proceedings. Successfully fighting a challenge usually involves testimony from witnesses who can attest to the person's soundness of mind.

If You Need Legal Assistance

If you need assistance with a testamentary capacity challenge, or have another estate law concern, an Estate Planning Lawyer in College Station can help. Call Peterson Law Group today to arrange a consultation at 979-703-7014.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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