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Understanding Legal Capacity and Dementia

The Law Office of Mario Flores, PLLC  Jan. 11, 2023

Senior with Alzheimer's or dementia.It is a rare occurrence when someone contests a will, whether on TV or in real life, and it is even more irregular for an individual to fully understand the process of contesting a will. 

Of course, to challenge a will, you must have -- in the eyes of the law -- the “standing” to do so, which means you either were named in the will or perhaps left out when you should have been included, and a valid reason. Often, if the last will and testament in question were created when the testator (or will writer) was older and perhaps suffering from dementia, the challenge can be based on a lack of legal capacity.  

Is a will created by a person with dementia considered valid or invalid in Texas? The answer to that depends on factors other than the disease itself. Under the law, the testator must have “testamentary capacity,” meaning they understand what they are doing and what its implications are when creating a last will and testament.   

If you are someone in or around Austin, Texas, looking to challenge a will because you believe the testator lacked legal capacity because of dementia or was unduly influenced by someone who took advantage of the debilitating condition, contact me at The Law Office of Mario Flores, PLLC. I will work with you to determine if you have legal standing and if the testator lacked testamentary capacity, so you can proceed with your legal challenge.  

I proudly serve clients in Round Rock, San Marcos, Georgetown, and Austin, Texas. 

Creating a Last Will and Testament: Legal Capacity 

To create a will, you must first be 18 years of age or older and be “of sound mind.” Sound mind at the basic level means you understand what you’re doing and what the consequences are.   

Further, you know what assets you possess and the persons in your life who matter to you—family, friends, associates—and those whom you wish to reward upon your demise. You also understand what a last will and testament is and the consequences. Together, these factors comprise testamentary competence or legal capacity. 

How Dementia Figures Into Legal Competence 

If a testator creating a will is suffering from dementia, that person can still be of sound mind when it comes to creating a document that declares the distribution of their assets once they’re gone. A medical evaluation of dementia in and of itself does not disqualify a person from possessing the legal competency to create a will. As mentioned above, it must be shown that the person lacks the testamentary capacity to declare a final will and testament. 

Legal Standing to Challenge a Will 

Getting back to the case of those who feel cheated or left out of a person’s estate distribution upon death, to challenge someone’s will requires that you have legal standing. If you’re a coworker, a drinking buddy, or a fellow sports enthusiast, it’s highly doubtful you have legal standing.  

Generally speaking, to have legal standing, you must fall into one of these categories:  

  • You have been named in the current one or a previous version.  

  • You are a fiduciary named in the will, such as a charity or bank.  

  • You are an intestate heir – in other words, if there is no will, you stand to inherit under the Texas laws of intestate succession.  

  • You are an “heir at law.” In other words, you are technically eligible for inheritance, whether as a spouse or child but have been left out of the will or disproportionately rewarded. 

Mounting a Challenge to a Will 

If you do have standing and feel the will has been created without legal capacity or mental competence, you will have to show that one or more of the following applied:  

  • The testator didn’t know they were signing a will  

  • The testator did not understand what they were giving away  

  • The testator didn’t understand who would receive the named assets  

  • The signing went against the testator’s wishes or interests 

Challenge Based on Undue Influence 

Another avenue for challenging a will is to show that, because of the testator’s mental condition, someone exerted undue influence on that person’s decisions. For instance, one child or relative was present when the will was created and compelled the testator to overly compensate that person since no one else was present to argue otherwise. This approach can even be an employer if the testator is otherwise of sound mind. 

Grounds of Due Execution 

Dementia aside, the testator’s will may be challenged because it was not executed according to Texas law. For a will to be valid in Texas, it must be:  

  • Preserved in writing and available as a physical copy  

  • Signed by the testator  

  • Witnessed by two credible individuals at least 14 years of age or older who sign the document in their own handwriting in presence of the testator 

Protect Your Loved One and Your Assets 

If you’re creating a will, make sure you do so in the presence of -- and with the assistance of -- a qualified and experienced estate planning attorney. Your attorney can then retain a copy of the will and testify to its validity in the event of a challenge during probate proceedings.  

Contact me at The Law Office of Mario Flores, PLLC, for all your estate planning and probate needs. I will assess the situation you’re facing and advise you of your legal options to obtain the best result possible. I proudly serve clients in Round Rock, San Marcos, Georgetown, and Austin, Texas.