pjc-family-2024-lib

PJC 230.2

W ILL C ONTESTS

see also Vance v. Upson , 1 S.W. 179, 183 (Tex. 1886); Cole v. Waite , 242 S.W.2d 936, 938 (Tex. App.—Amarillo 1951), aff’d , 246 S.W.2d 849 (Tex. 1952). Identifying document. Any appropriate wording to identify the document may be used in place of the document dated DATE in the question. For example, the docu ment might be identified by its exhibit number. Burden of proof. See PJC 230.1 (burden of proof (comment)) concerning the burden of proof before and after a will is admitted to probate. The fact that a will that has not been admitted to probate has a self-proving affidavit does not shift the burden to the contestant. Croucher v. Croucher , 660 S.W.2d 55, 57 (Tex. 1983). After a will has been admitted to probate, the burden of proof shifts to the contestant to establish that the testator lacked testamentary capacity at the time the will was executed. In re Estate of Woods , 542 S.W.2d 845, 846 (Tex. 1976) (burden is on contestant to prove lack of testamentary capacity after will has been admitted to probate); Lee v. Lee , 424 S.W.2d 609, 610 n.1 (Tex. 1968) (citing Chambers v. Winn , 154 S.W.2d 454 (1941)); see also In re Estate of Danford , 550 S.W.3d at 281 (before will’s admission to pro bate, proponent must establish that it was properly executed and that testator had testa mentary capacity at time of execution). Capacity at time will executed. The proper inquiry is whether the testator had capacity at the time the will was executed. Lee , 424 S.W.2d 609. The court may also look to the testator’s state of mind at other times if these times tend to show the testa tor’s state of mind on the day the will was executed. Horton v. Horton , 965 S.W.2d 78 (Tex. App.—Fort Worth 1998, no pet.). Evidence of incapacity at other times can be used to establish incapacity at the time the will was executed if it “demonstrates that the condition persists and ‘has some probability of being the same condition which obtained at the time of the will’s making.’” Croucher , 660 S.W.2d at 57 (quoting Lee , 424 S.W.2d at 611); In re Watson , 259 S.W.3d 390, 393 (Tex. App.—Eastland 2008, orig. proceeding) (“[C]ourts may look beyond the day a will was executed if the evi dence tends to show the testator’s state of mind at the time of its execution.”). If insane delusion raised. If the evidence raises the issue of insane delusion, an additional instruction is required. Lindley , 384 S.W.2d at 679. In such a case, the fol lowing instruction may be used: A person does not have testamentary capacity if he suffers from an “insane delusion” at the time he executes his will. An “insane delu sion” is the belief of a state of supposed facts that do not exist and that no rational person would believe. The insane delusion, if any, must have caused the person to dispose of his property in a way that he would not have but for the insane delusion. A belief or decision, however illogical, if arrived at through a process of reasoning based on existing facts, is not an insane delusion.

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