When an interested party contests the capacity of the testator, what standard do courts use to determine the validity of a will? The recent case of Neal v. Neal provides insight.  In that case, following her diagnosis of vascular dementia, a mother cut out two sons from her will, and left a third son left as the sole beneficiary. Neal v. Neal, No. 01-19-00427-CV, 2021 Tex. App. LEXIS 2051, at *1 (Tex. App. Mar. 18, 2021).


In Neal, the decedent, Florene Neal, executed several wills throughout her life, devising her estate in different apportionments to her three sons: John, Randall, and David. Her first and third wills, executed in 2008 and 2011, divided her estate between John and Randall, explicitly excluding David, as he was to gain full ownership of a property that he owned as a joint tenant with right of survivorship. The second will, executed in 2009, left her estate to all three sons in equal shares. In her final will, which was executed in January 2012, Florene devised the entirety of her estate to David, and disinherited both Randall and John.

Florene died in 2015, and Randall opposed admitting the January 2012 will to probate. Randall alleged that Florene lacked testamentary capacity as a result of her vascular dementia diagnosis in August 2011. Ultimately, the court found that Florene was of sound mind when her final will was executed, and Randall appealed the probate court’s decision.


On appeal, Randall contended that 1) Florene did not have testamentary capacity when she entered into the final will; and 2) David exerted undue influence to procure the execution of the final will.

Whether Florene had testamentary capacity

For a will to be admitted to probate, a party must first establish that the testator had testamentary capacity. A testator has testamentary capacity when, at the time of the execution of the will, she possesses sufficient mental ability to:

  • understand the business in which she was engaged, the effect of making the will, and the general nature and extent of her property;
  • know her next of kin and the natural objects of her bounty; and
  • assimilate the elements of executing a will, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them.

Id.  The “capacity” at issue is the capacity on the day the will was executed.  It can be inferred from witness testimony of the testator’s conduct. The court noted that evidence of state of mind at other times may be relevant, if it tends to show the state of mind of the testator on the day of the execution, but that the state of mind on the day of the execution is the ultimate question.

Randall presented evidence of Florene’s medical records and witness testimony from various family members and Melissa Ferringer, Florene’s attorney. Medical records reflected that Florene had cognitive issues and short-term memory problems from July – September 2011. During September 2011, records indicate her vascular dementia was “stable” and she was no longer considered homebound. She entered her final will in January 2012.

In July 2012, her condition worsened, and she was moved into memory care. Randall testified that she knew who he was “most of the time” during this period, but he did not believe she was of sound mind due to hallucinations and the need for 24-hour care.  David testified that she no longer needed 24-hour care from November 2011 until late 2012, when her condition worsened again. The only direct evidence of Florene’s condition at the time she executed her will came from her attorney. She testified that she believed Florene had the capacity due to lengthy conversations they had that day regarding her decision to disinherit her sons. The court held that they could not conclude that the probate court’s finding that Florene had testamentary capacity on the date of her final will “was against the great weight and preponderance of the evidence.”

Whether undue influence was exerted

Next, Randall contends that David used undue influence to procure the execution of the final will. Undue influence is distinct from a lack of testamentary capacity.  The party contesting the execution of the will must raise it.

Influence is considered undue when “the free agency of the testator is destroyed, and a testament is produced that expresses the will of the one exerting the influence rather than the will of the testator.” There are many considerations when determining whether undue influence exists, including whether there was opportunity to exert the influence, the nature of the relationship between the parties, and the mental or physical capacity of the testator. The court also noted that once the contestant presents evidence of a fiduciary relationship between the testator and proponent, the burden switches to the proponent to show the absence of undue influence.

Rebutting any presumption of undue influence, the court noted David and Melissa’s testimony that Florene acted on her own to contact Melissa regarding a new will. The court states that although evidence of undue influence is Randall’s burden, the contradictory evidence presented by David and Melissa extinguished any presumption. Randall introduced evidence that David assumed primary care of Florene, who needed 24-hour care to satisfy her failing mental and physical health, showing that David had taken advantage of her. However, the court noted that opportunity is not enough to establish undue influence, and that the mental and physical health is only one consideration. Ultimately, the court found that the allegations raised by Randall were mere speculation and insufficient to prove undue influence.


Having concluded that Florene had testamentary capacity when she executed her will, and that David exerted no undue influence over her, the court affirmed the order of the probate court. The January 2012 will was properly admitted.