Texas Laws Regarding Testamentary Capacity

by Wayne Thomas
You must understand the nature and extent of your property to make a will in Texas.

You must understand the nature and extent of your property to make a will in Texas.

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Wills can serve an important role in ensuring that your property passes according to your wishes after your death. Although Texas encourages freedom in the distribution of your estate, the law also recognizes that not everyone has the ability to make rational decisions, and in some persons this ability may decline with age. This ability is known as "testamentary capacity," and it must be present at the time the will is made before the will is considered valid in Texas.

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Overview of Testamentary Capacity

In order to make a valid will in Texas, the law requires that you be of "sound mind." In a nutshell, this means that you comprehend that you are making a will at the time it is executed, and that you understand how the bequest will affect your property after your death. Testamentary capacity should not be confused with mental capacity as defined in other areas of the law. For example, just because a doctor has declared that you can make medical decisions for yourself, this does not necessarily mean that you have the ability to make decisions regarding your property.


Texas law has outlined several elements to guide judges in determining whether testamentary capacity is present. In addition to understanding the nature and extent of your property, you must be able to properly identify your relatives. For example, a person with dementia who believes that the nurse is her son would be lacking in this element. Further, a person operating under an "insane delusion" would not have sufficient testamentary capacity. An insane delusion is a belief that no rational personal would believe, such as if you want to disinherit your son because you believe he has moved to Mars to spite you.

Other Requirements

In addition to being of sound mind, you must also be of a certain age or status to have testamentary capacity in Texas. The law requires that you either be 18 years of age, lawfully married or married in the past, or a member of the United States armed services. Because this requirement is objective, as opposed to the more subjective elements involved in determining soundness of mind, it is rarely a source of controversy in Texas.

Will Contests

Texas law requires that a will be "proved" to the satisfaction of the probate court before any property may be distributed according to its provisions. This typically involves witnesses testifying that you were of sound mind at the time the will was signed. As an alternative, Texas allows you to execute what is known as a self-proving affidavit. Although these affidavits need to be notarized, they remove the need to prove the will and much of the burden normally placed on your witnesses. A person challenging the will can still come forward with evidence that testamentary capacity was lacking, however.