San Antonio TX Probate Law Blog

Tuesday, May 10, 2016

Can a Person Under Guardianship Ever Make (or Update) A Will?

Is it possible for a person under a guardianship (i.e. a "ward") to make a valid Will?  Yes, it is possible if testamentary capacity can be proven.

Being placed under a court-ordered guardianship creates a presumption that the ward lacks testamentary capacity.  However, that presumption can be rebutted by evidence that the ward had testamentary capacity at the time the ward made the Will.1 

Proving the ward had testamentary capacity would require evidence that the ward: (1) understood that he or she was engaged in the act of making a Will; (2) understood the act's purpose (i.e. to plan for disposition of the ward's property after death); (3) possessed a general understanding of the nature and extent of the property he or she owned; (4) understood who his or her next of kin were and other "natural objects of his or her bounty" (e.g. close friends); and, (5) held all of this knowledge together in relationship to the task of making a Will long enough to have formed a reasonable judgement.2   In this type circumstance, it would be prudent for the attorney to videotape the ward as the attorney asks these and other questions that help establish testamentary capacity.

Speak with a qualified Wills and Estates attorney if you have questions on testamentary capacity or related topics.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.

Note1Evan v. Allen, 358 S.W.3d 358, 367-68 (Tex. App.-Houston [1st Distr.] 2011, no pet.)




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