You can sign a new will at any time, in any place, for any reason. Whether or not you have the necessary legal capacity to make the new will valid – well, that is a whole other question.
How To Make A Will Valid in Texas
Texas spells out your required legal capacity in a succinct two-part statute. The first part is objectively verifiable – you must be at least 18 years old, or lawfully married, or a member of the armed forces of the United States (or an auxiliary or maritime service).
Few people have difficulty figuring that one out.
The second part, the one that has launched a thousand lawsuits, is that you be “of sound mind.” Just that. No definition, no helpful hints, no inkling of the legislative brilliance behind that term.
The appellate courts have bravely stepped into the breach and created a 5-part test (it used to be only 4 parts, but we have progressed since then) to determine if you are “of sound mind” when you sign your name to your will. Here they are.
Steps To Know If You Are Sound of Mind When Making A Will
Step 1: You must have sufficient ability to understand the business in which you are engaged. The business is signing a will. You must be able to realize that at the time you sign it.
Step 2: You must have sufficient ability to understand the effect of your act in making the will. A will controls disposition of your estate after your death. It does not make a present-day gift of anything to anyone. If you believe otherwise, then you lack the ability to understand the effect of signing your will.
Step 3: You must have the capacity to know the objects of your bounty. If your will leaves everything to your kids, and at the time you sign you do not remember that you even have kids, then you are going to flunk this step.
Step 4: The capacity to understand the general nature and extent of your property. You do not have to be able to recite financial account numbers from memory, but you should at least know that you have accounts and a rough idea of their worth.
Step 5: You must have sufficient memory to collect in your mind the elements of the business to be transacted, and to hold them long enough to perceive, at least their obvious relation to each other, and to be able to form a reasonable judgment as to them. You should be able to describe the big picture when you sign your will. The is the “memory” test. There is a good reason why the old test omitted this last step; it is hard to pass and even harder to prove after you die.
General Rules To Know When Signing Your Will
Aside from the 5-part test, there are a few more general rules:
- Legal capacity is only required on the date you sign the will.
- The witnesses to your will signing are important, because they can give their opinion in a will contest about your conduct.
- The capacity required to sign a will is less than the capacity required to sign a contract or a trust.
And, finally, your capacity can only be challenged by an “interested person” after your death. No mere meddlesome intruders allowed.
Get Legal Assistance For Your Will From Our Estate Planning Attorney
Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation. To receive her newsletter contact her at legaltalktexas@hammerle.com.
