Texas Will Contests and Dementia: Proving Lack of Capacity

 Posted on June 20, 2025 in Wills and Trusts

Although lack of capacity is the primary reason wills are contested, having a diagnosis of dementia does not automatically prevent a person from being able to change his or her will. Perhaps one of your parents changed his or her will shortly before dying, leaving you with no inheritance, and you believe there was a lack of capacity to make those changes. Whether you can contest the will depends on several factors.

Are you an only child? If you have siblings, were they also left out of the will? How far had your mother's or father’s dementia progressed? Was there a definitive diagnosis of dementia? Do you suspect undue influence by another person? Answering these questions is necessary because contesting a Texas will is complex, time-consuming, and has a low success rate.  The best step you can take right now is to speak to a knowledgeable Hood County, TX estate planning lawyer who is experienced in will contests.

How is Testamentary Capacity Determined?

First, you should be aware that under Texas Statutes (Texas Estates Code Section 256.204), you have only two years from the date the will was admitted to probate to contest the will. There is one exception: If forgery or fraud is involved, then you have two years from the date that forgery or fraud is discovered. If you are contesting a will based on lack of capacity, be aware that an attorney should have evaluated your loved one’s ability to make or change a will based on:

• Whether the person understood the nature and extent of his or her assets
• Whether the person understood who his or her relatives were and who would inherit
• Whether the person understood how his or her will transferred assets to heirs
• Whether the person had a comprehensive understanding of how the above factors related to one another

This is assuming that an attorney was involved in changing the will. A handwritten, or "holographic" will is legal in the state of Texas, as long as the entire will is handwritten by the decedent and it is properly dated and signed.  

How is Dementia Linked to Lack of Capacity?

In the context of a will, the "capacity" of a patient with dementia or Alzheimer’s depends on whether the individual was capable, at the time the will was changed, of understanding a choice, communicating that choice, and appreciating the consequences of that choice.

A medical diagnosis of dementia is extremely important. Medical documentation is a key element in proving a lack of capacity, whether the person is still alive or has passed away. Disinterested witnesses who spent time with the individual may also be able to testify to the individual’s lack of capacity.

What if the Will Has a No-Contest Clause?

Some people ask that a no-contest clause be included in their Texas will. A no-contest clause can be useful in deterring frivolous challenges to a will, but it may also deter legitimate challenges. While a no-contest clause may make it more difficult to challenge a will, if you have clear evidence of a lack of capacity, you can move forward with your will contest despite the no-contest clause.  

How is a Texas Will Contested?

It is best to make your claim as early as possible. Remember that contesting a will is not only between you and the judge. Other interested parties have the right to challenge your claim or even file a counterclaim. If you qualify as an interested party, such as an heir or spouse, your attorney will file a lawsuit in the probate court that has jurisdiction where the testator died.

Contact a Parker County, TX Estate Planning Lawyer

If you believe your loved one had dementia at the time he or she changed a will, speaking to a Hood County, TX estate planning attorney from The Law Offices of Rob Christian can be beneficial. Call 682-936-4003 to schedule a free consultation.