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Can You Prove Lack of Testamentary Capacity Even If There’s No Direct Evidence?


The law in Texas is clear that a person must have the mental capacity to execute a will. A testator’s mental capacity at the time of execution can be inferred from circumstantial evidence, such as when an individual executes a document with language that is inconsistent with the individual’s usual practices. If there’s doubt about the testator’s mental state, it can be resolved by asking for evidence about the decedent’s mental condition during his lifetime.

But can a jury can infer lack of testamentary capacity where there is no direct evidence that the decedent lacked testamentary capacity? Let’s take a look.

Testamentary Capacity:

This means that a person is mentally able to enter into creating a will.

Motion for JNOV:

This happens when a losing party asks the trial judge to enter into a judgment in favor of the losing party, despite what the jury decided.

Probate Case

Tieken v. Midwestern State University, 912 S.W.2d 878 (Tex. App. — Fort Worth 1995, no writ)

Facts and Procedural History

Rodney P. Tieken was an insurance adjuster for John and Pauline Abbott. They became and remained friends throughout the Abbott’s life. The Abbott’s both executed wills in 1981. The wills left their estates to the surviving spouse and then to the Midwestern State University Foundation. They appointed their friend Beyer to be independent executrix and later became their attorney-in-fact by a power of attorney.

John passed away and Beyer served as executrix of the will. Later Pauline suffered a stroke and other health issues. Beyer cared for her during this time. After suffering what Pauline thought was another stroke, she reached out to Tieken and her friend Beverly Power about looking into Rolling Meadows Nursing Center. Tieken decided to take charge and went ahead and moved her into the nursing home.

Beyer and her husband drafted an “open letter” expressing concerns about Pauline’s move to the nursing home and the motives behind it. She noted that the Abbot’s had denied Tieken’s request to borrow $30,000 once. Both Tieken and Power claimed that Pauline was upset about the letter and Pauline wrote Beyer that she was revoking Beyer’s power of attorney and naming Tieken instead.

Later that year Pauline drafted a new will, leaving a large part of her estate to Tieken. Power said she played a large role in drafting the new will and Tieken made notes on the drafts. They hired Bob Goff to prepare the new will. Once Pauline passed away, Goff filed to probate the will and Beyer contested. At trial the jury found that Pauline lacked testamentary capacity to enter into the new will and that it was the product of undue influence. The court sided with Beyer and Tieken appealed.

Tieken made a Motion for JNOV and a Motion for New Trial. He asserted that there was “no evidence” of the jury’s finding and that the court erred in overruling his motions because the evidence is legally and factually insufficient to support that Pauline was unduly influenced. The court found that there was evidence to support the jury’s findings. Tieken then had the burden of proof to establish that Pauline had testamentary capacity as a “matter of law.” This standard means that even if there is a tiny amount of evidence to support the jury’s finding, it is sufficient as a matter of law. Since there was evidence to prove otherwise, Tieken did not meet his burden. Since Tieken and Power basically kept her away from everyone who had been in her life and she had multiple instances where she was proven to be confused and unable to preform day to day tasks, the court found that the evidence was not legally and factually insufficient and that it was not against the great weight and preponderance of the evidence. Therefore, his motions were denied.

Lastly, Tieken filed suit against MSU. MSU was the primary beneficiary in the first will and a beneficiary of a smaller portion in the second will. MSU reached a fee agreement with Beyer’s attorney. The agreement was that MSU would pay the attorney one-third the amount it received in excess of what it would have taken in the second will, if successfully contested. Tieken claimed that MSU is contesting the second will by entering the agreement. The second will had an anti-contest clause, meaning if the second will had been found valid, MSU would have lost its bequest had it been found a party to the suit. However, the court found the case to be moot since the second will was found invalid.

If there is no direct evidence that a testator lacked testamentary capacity, can the jury still determine she lacked testamentary capacity?

Yes. The jury can look at the circumstances and totality of the evidence to determine if a testator lacked testamentary capacity.

If there is conflicting evidence that would support a different conclusion, does a court of appeals act as trier of fact?

No. The court of appeals is not a fact finder. It will simply look to see if there is evidence to support what the trial court found.

Tieken v. Midwestern State University shows that the jury has discretion to determine if a testator had testamentary capacity and that courts of appeal do not act as trier of fact.

Do you need to hire an Experienced Probate Attorney to Help in Contesting a Will?

There are many times when a person may think that they do not need to hire an attorney to help them with a probate matter. This often happens when there is no will or the will is very simple. In Texas, however, even if there is no direct evidence of lack of testamentary capacity, the court may find that the decedent lacked testamentary capacity.

If you are thinking about contesting a will in Texas, you should strongly consider hiring an experienced probate attorney. Probate law can be complex, and an experienced attorney can help you navigate the process and give you the best chance of success. Call us at (469) 895-4333 for a FREE attorney consultation.

What must be alleged and proved to establish that a testator had sufficient testamentary capacity to make a will in Texas?

In order to prove that a testator lacked sufficient testamentary capacity to make a will in Texas, the following must be alleged and proved:

1. The testator was of unsound mind at the time the will was executed;

2. The testator did not understand the nature and effect of making a will;

3. The testator did not understand the extent of his or her property; or

4. The testator did not know who his or her natural heirs were.

It is important to note that direct evidence is not required to prove any of these points. Rather, testamentary capacity can be established through circumstantial evidence, such as the testimony of witnesses who observed the testator’s behavior around the time the will was executed.

When determining whether a person has testamentary capacity?

There are a few factors that must be considered when determining whether a person has testamentary capacity. First, it must be determined whether the person understand the nature and effect of making a will. Second, the person must understand the extent of their property and who would naturally inherit that property in their absence. Lastly, the person must be able to communicate their testamentary wishes in a coherent manner. Even if there is no direct evidence of a person’s lack of capacity, these factors must be considered in order to make a determination.

Who has the burden to prove testamentary capacity?

In Texas, the person who is challenging the validity of a will has the burden to prove that the decedent lacked testamentary capacity. This can be difficult to do if there is no direct evidence of the decedent’s mental state at the time the will was executed. However, there are some indirect ways to show that a decedent may have lacked capacity. For example, if the will was executed shortly after the decedent suffered a severe stroke or other debilitating injury, this could be used to show that the decedent may not have had the ability to understand what they were doing when they executed the will.

What is probate estate?

A probate estate is the propertythat a person owns at the time of their death. This includes real estate, personal belongings, and money. The probate process is the legal process of distributing a person’s probate estate after they die. Texas law requires that all probate estates be distributed through a court-supervised process called “probate.” Probate can be a lengthy and complicated process, particularly if there is disagreement among the heirs about how the estate should be divided. One key issue that can arise in probate is whether the decedent had the “testamentary capacity” to make a valid will. If there is evidence that the decedent lacked testamentary capacity, then the will may be invalidated and the estate will be distributed according to the laws of intestacy (which govern how property is distributed when someone dies without a will). There is no bright-line rule for what constitutes sufficient evidence of lack of testamentary capacity. In general, though, courts will look at whether the decedent understood the nature and extent of their property, knew who their natural heirs were, and had a general understanding of what they were doing when they made their will.

How to write a will in Texas?

If you’re a Texas resident and you want to ensure that your wishes are carried out after your death, you need to create a will. A will is a legal document that details how you want your assets to be distributed among your heirs. You can also use your will to appoint a guardian for your minor children.

Creating a will is an important step in ensuring that your loved ones are taken care of according to your wishes. However, it’s important to make sure that your will is valid. In order for a will to be valid in Texas, the person creating the will (known as the “testator”) must have testamentary capacity.

Testamentary capacity is the legal term for the mental ability to understand the nature and consequences of creating a will. The testator must be of sound mind and must understand the property they’re disposing of, who their heirs are, and what the effects of their will are.

There’s no hard and fast rule for determining whether someone has testamentary capacity. However, courts will often look at whether the testator was under the influence of drugs or alcohol at the time the will was created, or whether they had been diagnosed with a mental illness.

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