pjc-family-2024-lib

W ILL C ONTESTS

PJC 230.2

1. lacks sufficient mental ability to understand that he is making a will, or 2. lacks sufficient mental ability to understand the effect of his act in making the will, or 3. lacks sufficient mental ability to understand the general nature and extent of his property, or 4. lacks sufficient mental ability to know his next of kin and natural objects of his bounty and their claims on him, or 5. lacks sufficient memory to collect in his mind the elements of the business to be transacted and to be able to hold the elements long enough to perceive their obvious relation to each other and to form a reasonable judg ment as to these elements. Answer “Yes” or “No.” Answer: _______________ COMMENT Source. The testamentary capacity test was originally set out in Prather v. McClelland , 13 S.W. 543, 546 (Tex. 1890). More recent formulations of the test can be found in In re Estate of Danford , 550 S.W.3d 275, 281 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (describing elements required to prove that testator had testamen tary capacity), as well as Lindley v. Lindley , 384 S.W.2d 676 (Tex. 1964); Pool v. Diana , No. 03-08-00363-CV, 2010 WL 1170234 (Tex. App.—Austin Mar. 24, 2010, pet. denied) (mem. op.); In re Estate of Robinson , 140 S.W.3d 782, 793 (Tex. App.— Corpus Christi–Edinburg 2004, pet. denied); Tieken v. Midwestern State University , 912 S.W.2d 878 (Tex. App.—Fort Worth 1995, no writ). A person must be of sound mind to execute a valid will in Texas. Tex. Est. Code § 251.001. “Sound mind” means testamentary capacity under Texas law. Bracewell v. Bracewell , 20 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Chambers v. Chambers , 542 S.W.2d 901, 907 (Tex. App.—Dallas 1976, no writ). The traditional formulation of item 1 in the instruction is “sufficient mental ability to understand the business in which he is engaged,” but the Committee believes that the wording shown above is more understandable to a jury. In dicta, some courts have suggested that less mental capacity is required to enable a testator to make a will than for the same person to make a contract. See, e.g., Hamill v. Brashear , 513 S.W.2d 602, 607 (Tex. App.—Amarillo 1974, writ ref’d n.r.e.). Moreover, the case of Prather v. McClelland included this distinction in the charge to the jury. Prather , 13 S.W. at 546;

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