Estate of Durgin: jury finds testator lacked capacity

In Estate of Durgin, the Tyler Court of Appeals upheld a jury verdict overturning a will.  The jury found the testator lacked capacity and that the challenged will was a product of undue influence.

Veda Durgin died on March 17, 2015.  She executed two wills:

·         November 2006 – leaving her estate to her three children;

·         July 2007 – leaving her estate to only two of her three children.

The children of the omitted child contested the July 2007 will.  They were successful at trial and the Van Zandt County Court at Law entered a judgment setting aside that will.

On appeal, the proponents of the July 2007 will claimed that there was insufficient evidence to support the jury’s verdict.  The court of appeals noted that the proponents had to prove on appeal that the jury’s verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  In conducting a legal sufficiency review, a court of appeals must consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that supports it.

The proponents contended that there was no evidence to support a contest to Ms. Durgin’s capacity on the date she actually executed the challenged will.  The record contained no direct evidence of her capacity on July 25, 2007, other than the attestations in the self-proving affidavit contained in the will itself.  Instead, the evidence was regarding her capacity before and after she executed the will.

It is well settled law in Texas that the primary focus in a will contest is the testator’s mental condition on the day the will was executed.  However, the Texas Supreme Court has noted that in the absence of such evidence, the testator’s condition both before and after the execution is relevant.  In some cases, such evidence may be months, or even years, before or after the execution.

In its decision, the Court of appeals noted the following evidence regarding the testator’s condition:

·         Testimony that six weeks before the will at a funeral, she ““had no clue what was going on at all.”  She apparently did not know why she was there and that one of her children had died;

·         Medical records indicated depression, memory loss, and confusion;

·         Medical records in March of 2007 showed her memory was progressively worsening;

·         She was admitted to the hospital five days after she executed the 2007 will. The report stated that she “presented with a chief complaint of sudden onset of disorientation and confusion and mental status changes.” The report further indicated that “she had been at home and was noted to defecate and displayed marked confusion”

The same report also stated:

The patient was also noted to have trouble with repeating herself and asking the same questions over and over again, and was noted to have marked short-term memory and will need to manage to do things like calls, forgetting appointments, medications. She seemed same and has had trouble doing calculations and managing her finances or balancing her checkbook. She has loss of interest in activities of daily living. Also needs help with dressing, bathing.


 The court of appeals summarized:

The evidence established that Veda suffered from progressively worsening memory loss for years and suffered from depression and confusion at least since January 2007. The jury could infer that Veda did not have sufficient memory to identify the elements of her business, perceive their relation to each other and form reasonable judgments about them. In March, it was noted that she sometimes did not recognize her son and might need to be in a nursing home. The jury could infer that Veda did not know the natural objects of her bounty. Five days after signing the will, Veda was unable to dress or bathe without assistance. The jury could infer that when an individual cannot perform the rudimentary tasks of bathing and dressing she could not understand the nature and extent of her property. On this record, the jury could determine that Veda was incapable of exercising judgment, reason, and deliberation, or of weighing the consequences of her will. The record shows that Veda’s condition existed at least since early 2007 and persisted until after the will was signed. Considering this evidence in the light most favorable to the jury’s finding of incompetence and indulging reasonable inferences that support it, we conclude there is more than a scintilla of evidence to support the jury’s finding of incompetence.


The court of appeals noted that there was countering testimony from one of the will proponents. However, it was up to the jury to judge the credibility of such testimony and to weigh the totality of the evidence.

Because the court of appeals upheld the jury finding of lack of capacity, there was no need to consider the challenge to the undue influence finding. The capacity finding alone was sufficient to overturn the 2007 will.

This result is not surprising.  Based on the court’s summary of the facts, there was plenty of evidence regarding mental incapacity to support the jury’s decision.  And court’s of appeals tend to be very reluctant to overturn a jury’s decision regarding testamentary capacity.


J. Michael Young