Will Contests in the 21st Century:  They Aren’t What They Used to Be by Lisa Jamieson, Natalie Brackett and Nathan Winkler.

In the modern probate world, parties contest wills, trusts, and documents disposing of non-probate assets, often all at the same time.  Where the same challenges may be made to each type of disposition, the law sometimes imposes varying standards and restrictions.  In some cases, case law leaves unanswered questions regarding the extent of overlap of legal standards.  The resulting complexity can be a challenge for any practitioner to keep straight.

I. CAPACITY CHALLENGES

    A. Contesting Wills

         1. Testamentary Capacity

The capacity required to make a disposition varies depending on the nature of the instrument used.  The test for basic testamentary capacity in a will contest is well settled and oft quoted by seasoned probate attorneys.  Testamentary capacity requires that the testator “must have been capable of understanding the nature of the business he was engaged in, the nature and extent of his property, the persons to whom he meant to devise and bequeath it, the persons dependent upon his bounty, and the mode of distribution among them; that he must have had memory sufficient to collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive, at least, their obvious relations to each other, and be able to form a reasonable judgment as to them . . . .”  Prather v. McClelland, 76 Tex. 574, 584–85, 13 S.W. 543, 546 (1890). 

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