A Last Will and Testament is a legally binding document that ensures a testator’s estate is distributed according to that person’s wishes. Having a valid will safeguards a testator’s intent for the estate without leaving loved ones to guess what the testator wanted.
Two important components when establishing a valid will are having testamentary capacity and showing testamentary intent.
Testamentary Capacity
A testator has capacity when he or she has the “sufficient mental ability” to understand the process of creating a will. In other words, testamentary capacity exists when the testator is of “sound mind.”
Specifically in Texas, a testator has capacity to make a valid will when he or she has the mental ability to understand the following:
- The fact that testator is making a will;
- The effect of making the will;
- The general nature and extent of the testator’s property;
- The natural objects of the testator’s property (i.e. testator’s relatives); and
- The elements of the disposition of assets along with sufficient memory to make reasonable judgments and plans about those assets.
In re Estate of Blakes, 104 S.W.3d333, 336 (Tex. App.—Dallas 2003, no pet.)
Testamentary capacity on the day the will was executed is a pivotal issue in a will contest. It is important to note that evidence of a testator’s state of mind at times before or after the day of execution can be used to prove a testator’s state of mind on the day of execution. This evidence must demonstrate that a condition affecting a testator’s state of mind was persistent and likely present on the day of execution. Id.
Testamentary Intent
In simple terms, testamentary intent is the intention of drafting a document that sets forth how property will be distributed upon death. Note that this does not mean a testator needs to realize he or she is making a will. However, it must be evident that a testator is intending to direct his or her property to the beneficiaries at the time of death.
For example, if a person were to simply draft a document with a list of names and assets listed under each name, a court would likely find this to be too ambiguous to determine a Testator’s intent. It is unclear whether these assets go to the person, whether the assets are given in the testator’s lifetime or upon death, etc. Words of intent are crucial in ascertaining the actual wishes of a testator and will avoid conflict among beneficiaries in the future.
While there are no magic words necessary for a valid Texas will, it is important to look to the meaning of the words actually used by the testator. A court must examine the instrument’s language, look to all provisions as a whole, and attempt to harmonize them to give effect to the will’s overall intent. Knopf v. Gray, 545 S.W.3d 542, 545 (Tex. 2018) (citing Sellers v. Powers, 426 S.W.2d 533, 536 (Tex. 1968)).
An experienced probate attorney offers invaluable assistance with estate planning and can draft a will which clearly affirms both capacity and intent of the testator.
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