Sandra W. Reed’s Life Care Planning: Capacity challenges to wills and other estate planning documents

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your

life planning questions.

Jan Jones has suffered a mild stroke which has left her confused at times.  She is mentally alert and has recovered her ability to speak, but she cannot always get her thoughts organized or say exactly what she means.

Frank Ford is in the early stages of Alzheimer’s. He frequently forgets appointments, doesn’t recall whether he has taken his medication and often can’t immediately recall the names of people he knows well.

Kevin Kettle has been a heavy drinker for 30 years. After his wife died last year, he sank into depression and drank even more heavily than usual. He sometimes wakes with bruises and contusions he can’t recall contracting.

Carl Castle is recovering from a head injury he sustained when hit by a driver who was talking on a cell phone and failed to stop at an intersection where Carl was crossing on foot. In recent months each one of these individuals has sought the assistance of a lawyer to write a will and create other estate planning documents.

Each circumstance raises issues as to whether Jan, Frank, Kevin or Carl has the mental capacity necessary to make valid the documents they are seeking to have drawn up on their behalf. In legal terms, they must have “capacity.”

None of the persons described clearly lacks the legal capacity required. One or more of them may have capacity on a given day but not have it on another. However, in conjunction with their legal counsel, they should take extra precautions to document their capacity to prepare for any potential challenge that these documents are not valid on the basis of incapacity. Here are some strategies they would be well advised to employ.

Seek Counsel Sensitive to Issue of Capacity

Jan, Frank, Kevin and Carl should determine up front that the attorneys consulted are sensitive to the issues of capacity and attuned to providing the safeguards necessary to counter any claim of invalidity due to incapacity. If needed, they should involve others to assist in making this determination. Just as patients with a particular disease consult a physician experienced in treating that condition, it is equally important to determine when consulting a lawyer to prepare estate planning documents that the particular lawyer has expertise in establishing evidence of legal capacity.

If appropriate counsel has been chosen, the attorney most likely will take the lead in suggesting good strategies, including those given here and, perhaps, others. Arming oneself with knowledge ahead of consultation with a lawyer regarding preparation of estate planning documents is especially important when circumstances raise the issue of capacity.

Obtain Medical Evidence of Capacity

A medical evaluation near the time of creating wills or other estate planning documents may be appropriate. This medical evaluation may be recorded in the examining physician’s medical records or in a letter from the treating physician to the patient.

At a minimum, Jan, Frank, Kevin and Carl ought to schedule an annual physical on the date the documents are to be signed and ask the doctor to note mental condition and document that the patient is alert and oriented.  A more complete report of a mental health evaluation by a qualified medical professional (not all doctors are so qualified) would be even more proof of capacity.

Texas courts will generally recognize internists, psychiatrists, neurologists and those with a geriatric specialty as experts on the issue of capacity. However, other medical specialists, such as orthopedists, gynecologists or podiatrists, may not be recognized as qualified to give an opinion as to capacity.

Name Family Members and List Property in Will

A testator is required to be aware of the “natural objects of his or her bounty” as well as the nature and extent of his or her property to have the capacity to make a will. Since immediate family members are considered the most likely candidates in this category, it is a good idea to identify family members in the text of the will even if they will not be favored with a bequest because this demonstrates that awareness.

Also, assets should be identified in the will.  A detailed listing of property is not required, but they should give at least a general description of assets in the will.

As With Real Estate: Location, Location, Location

To avoid a claim that a family member or caregiver inappropriately influenced them, the persons described above should schedule the review and signing of wills and other estate planning documents at the lawyer’s office rather than at a home, hospital or health care facility. Beneficiaries or persons named as agents should not attend the execution formalities, preliminary meetings prior to preparation or meetings for review afterward of documents drafted. These actions will also help demonstrate the testator’s independence and help counter any claims of manipulation or undue influence.

If possible, Jan, Frank, Kevin and Carl should drive themselves to the attorney’s office to execute the will or other documents. This demonstrates they are capable of traveling there without assistance.

On the other hand, if one is homebound, hospitalized or in rehab, it may be necessary to execute the documents where they are physically located. In that case, credible independent witnesses and a notary must be available. In a facility, this can usually be accomplished by asking facility employees to serve as witnesses. Some facilities will also have a notary on staff.

If the execution takes place in a home, it may be necessary to arrange for friends or neighbors to serve as witnesses. The witnesses should engage in conversation with the testator and ask any questions needed to satisfy concerns regarding capacity of the testator.  The witnesses must also agree to be available and to testify in the event they are needed in any actions challenging the documents.

If you have questions, please do not hesitate to call me at 254-797-0211 or email me at

Sandra W. Reed is an attorney with Katten & Benson, an elder law firm in Fort Worth, Texas.  She lives and practices in beautiful Somervell County, near Chalk Mountain.



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