Court finds evidence to establish lack of capacity

In Estate of Danford, the County Court in Brazoria County had dismissed a will contest at the summary judgment stage.  In essence, the trial court found that the contestants to the offered will had not presented sufficient evidence to get to trial on either lack of capacity or undue influence claims.  The Houston 14th Court of Appeals disagreed. Regarding capacity, the court of appeals noted the following evidence from the contestants:

  • Neither of the will witnesses had previously known the testator

  • Neither of the witnesses could confirm the witnesses knew she was signing a will; no one read the will aloud or otherwise indicated that everyone was there to witness a will signing

  • A person who knew the testator stated in an affidavit that she began experiencing “confusion and exhibiting extremely unusual behavior” as early as two years before she signed the will

  • The testator kept “large amounts of stray animals, over 60-70 raccoons, a peacock, cats and other stray animals” at her home

  • The testator was “homebound, in a wheelchair[,] and hardly ever left her home"

  • The testator frequently called 911 “at all hours of the day and night, distraught and confused.”

  • The testator had allegedly denied to a witness later that she had signed a new will

The court of appeals found:

we would also conclude that the evidence presented . . .  raises genuine issues of material fact about whether, at the time Danford executed the will, she (1) understood the effect of making the will and the general nature and extent of her property, and (2) had sufficient memory to assimilate the elements of executing a will, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them.

In essence, the court of appeals ruled that the evidence presented by the contestants was of the type and quality that would allow a jury to find that the testator lacked testamentary capacity to execute the will. Typically, medical records are critical in showing lack of capacity.  But as shown in this case, the testimony of witnesses and anecdotes can also provide evidence the testator lacked capacity to execute a will.