Sound Mind

     One of the most common ways that a will is contested is by claiming that the testator, or person writing the will, was not of “sound mind” when they wrote their will.  In Texas, an individual that wrote a will is of “sound mind” based upon the “totality of the circumstances”.  In practice, this standard is difficult to define.  In many ways it is a vague and unclear standard that offers flexibility in its application.  Due to the fact that the circumstances will always be unique in every individual situation the “totality of the circumstances” will be very fact dependent.

     Some of the the factors that a judge or jury will use to determine whether or not someone was of “sound mind” when they wrote their will are:

  • whether or not they knew and understood the nature of their property,
  • whether or not they knew who the inheritors of the property would be,
  • whether or not they understood how the property would be distributed and
  • whether or not they made an orderly distribution of the property.

     As a practical matter, it is difficult for a non-lawyer or a lawyer that is not familiar with probate case-law to know what is considered an “orderly” distribution of their property.  That is one of the reasons that if an individual wants to do something out of the ordinary with their property that they make sure that it will be written in such a way that it will not be easily challenged in court.

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