Requirements for Testamentary Capacity

We all know it is very important to have a properly drafted and properly executed will that complies with the requirements of Texas law. But what requirements must a person meet before he or she can execute a will?

The basic requirements are that the person executing the will – called a “testator” – must be over the age of 18; be legally married; or be a member of the armed forces, auxiliaries, or maritime service at the time the will is executed. Additionally, that person must be “of sound mind” and be able to understand certain facts about the will.

Being of sound mind is also called having “testamentary capacity.” The standard for testamentary capacity is not necessarily very high, but there are specific requirements that must be met. At the time the testator signs the will, the testator must:

• understand that he is making a will that disposes of his property upon his death;
• understand the effect of making the will;
• have a general knowledge of the property he owns and is disposing of in his will;
• know his next of kin and his family, or the people to whom he is leaving his property; and
• collect in his mind the elements of the business to be transacted and hold them together long enough to form a reasonable judgment about them.

If testator cannot meet one of the components of this requirement for testamentary capacity at the time the will is executed, then, under the law, a testator cannot be found to have had capacity to execute the will.

You can read about contesting a will that you believe may have been executed by a testator who did not have capacity on our will contest page.