There are requirements for writing a will, and one requirement under Texas law is “testamentary capacity”. This means when you draft the will, you must be 18 years old and of a sound mind. If you’re mentally ill or a doctor declares you incompetent because of dementia or other physical conditions that prevent clear thinking, then you’re not of sound mind.

Being of sound mind means:

You’re able to understand you’re drafting a will

You’re able to understand the effects of making the will

You understand the general nature and extent of your property

Your memory is good enough to relate the elements of the transaction and perceive their relation to each other so you can make reasonable judgments (Prather v. Mclelland)

A famous case that was high profile for some time in The Dallas Morning News  involved Mary Ellen Bendsten. Bendsten was 88 years old and changed her will while on her deathbed, leaving her estate to two antique dealers and their attorney. Mark McKay had wined and dined her and estranged her from her family for some time. Her daughter contested the will based on her mother’s lack of testamentary capacity. A doctor had previously declared Bendsten incompetent. Her daughter won the case. Dallas prosecutors criminally indicted the suitor for conning Bendsten. A jury convicted him, but the criminal trial appeal dragged on for seven years. The judge considered the seven years part of the defendant’s probation and sentenced him to four more years of probation, a month in county jail and a $1,000 fine.

If you have questions about a will or a person’s testamentary capacity, consult with our attorneys at C.E. Borman & Associates. We can answer your legal questions, advise you and help protect your rights.