Evidence of mental incapacity in a will contest
At our firm, we regularly represent clients in Texas will contests and estate litigation involving claims that a will was executed when the testator lacked sufficient mental capacity. This is one of the most common legal grounds for setting aside a will—and one of the most misunderstood.
In this post, I’ll explain how courts evaluate mental capacity, what kinds of evidence are most persuasive, and how you can gather the proof you need if you believe your loved one was not of sound mind when they signed their will.
What Is Testamentary Capacity?
Under Texas law, a person must have “testamentary capacity” to execute a valid will. That means the testator must understand:
The fact that they are making a will
The general nature and extent of their property
The natural objects of their bounty (i.e., who would normally inherit from them, like children or spouses)
The effect of the act of making a will
It’s a relatively low standard—but if a person suffers from cognitive impairment, memory loss, or dementia, they may no longer meet it.
Two Key Sources of Evidence in Capacity Disputes
When I investigate a claim of lack of mental capacity, I focus on two primary sources of evidence: medical records and witness observations.
1. Medical Records and Cognitive Evaluations
Medical records often provide the clearest window into a person’s mental health. These may include:
Notes from doctors about forgetfulness or cognitive decline
Diagnoses of dementia or Alzheimer’s
References to executive functioning issues
Records of referrals for cognitive testing
Notations of confusion or disorientation
Observations made by caregivers or family members
Even when there’s no formal diagnosis, medical records often contain valuable context. A note that a patient is “not managing medications” or is “unable to drive safely” may be meaningful to a jury.
In some cases, I work with medical experts who review these records and testify about the severity of the decline and its impact on the person’s ability to make legal decisions.
2. Witness Testimony and Personal Observations
Equally powerful is the testimony of friends, family members, or longtime acquaintances. These witnesses can describe noticeable changes—like confusion, forgetfulness, changes in hygiene, or an inability to carry on conversations or handle routine tasks.
I’ve had witnesses describe how their loved one stopped playing weekly card games, couldn’t recall names of close relatives, or got lost driving familiar routes. These everyday stories can be far more persuasive to a jury than medical jargon.
Social Media and Text Messages Can Backfire
In today’s world, people often share more than they should on social media or in group texts. I’ve had cases where a person benefiting from a will posted publicly about their elderly relative’s forgetfulness—only to claim in court that the person had full capacity. These contradictions can be devastating to a case.
If You Suspect Lack of Capacity, Act Quickly
These disputes are highly fact-specific and often emotional. If you believe a loved one’s will was signed when they lacked capacity, it’s important to act fast—while memories are fresh and records are still available.
We routinely represent clients in contested estate cases across Texas, including disputes involving mental incapacity, undue influence, fraud, or suspicious last-minute changes to estate plans.