Do You Have Testamentary Capacity?

In order for a Last Will and Testament to be valid, the person signing must have testamentary capacity. That simply means that the person is “of sound mind.” In Texas you also must be at least 18 years old, be or previously have been married, or be a member of the military.

What does it mean to be of sound mind?

To be "of sound mind," a person must understand they are making a will, understand the effect of making a will, understand the general nature and extent of their property and know who their next of kin is. The person making the will does not need testamentary capacity every day. On the day of signing, they just need sufficient memory to collect in their mind the elements of the business and hold them long enough to form a reasonable judgment about them.

How can you show someone has testamentary capacity?

Testamentary capacity may be challenging to show when a person is older and their memory begins to slip, suffered a stroke that has impacted their ability to communicate, received certain mental health diagnoses, or have been prescribed mind-altering medications to treat a serious illness.

To help guard against a challenge that you did not have testamentary capacity when you signed your will, your attorney can use a self-proving affidavit during the will signing ceremony. The witnesses sign an affidavit that states that they believe you are of sound mind at the time you signed the will. This creates a presumption in your favor that you had testamentary capacity at the time you signed the will. In addition, having an attorney present will also provide another witness to testify to your testamentary capacity in the event your will is challenged.

If you need to create or update your will, I encourage you to contact me about our flat fee estate planning services. I work with estate planning clients throughout Texas and am happy to travel to clients located in or near San Antonio. I look forward to working with you.