In In the Estate of Mahaffey, a testatrix executed a new will nine days before she died of cancer. No. 04-19-00122-CV, 2019 Tex. App. LEXIS 11171 (Tex. App.—San Antonio December 27, 2019, no pet. history). A niece offered the new will for probate. The new will cut out one of the testatrix’s sisters, and the sister offered an earlier will for probate and argued that the testatrix did not have mental capacity to execute the new will. The court granted summary judgment for the proponent of new will holding, as a matter of law, that the testatrix had mental capacity. The sister appealed.

The court of appeals held that:

A testator has testamentary capacity at the time of execution if she possesses sufficient mental ability to: (1) understand the effect of making the will and the general nature and extent of her property, (2) know the testator’s next of kin and the natural objects of her bounty, and (3) have sufficient memory to 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. As evidence in support of her traditional motion for summary judgment, the niece attached a copy of the new will and self-proving affidavit; the drafting attorney’s affidavit; the partial deposition testimony of the drafting attorney; and the partial deposition testimony of a witness to the execution of the new will. Based on this evidence, the court held that the niece met her initial summary judgment burden of establishing the elements of testamentary capacity:

Based on the foregoing summary judgment evidence, Mahaffey understood that the effect of the October 25th Will would result in the disinheritance of Crosswhite. On October 24 and 25, 2016, Mahaffey maintained that her intention was to remove Crosswhite from her will. Mahaffey knew the general nature and extent of her property. Mahaffey knew she had cash at her house, a home in Kerrville, and various bank accounts. Mahaffey managed her own banking and financial accounts. Mahaffey knew her next of kin and the natural objects of her bounty. Mahaffey provided Jesko with her family history, the date of her husband’s death, and that her family consisted of her sisters and her late husband’s great-niece. Mahaffey understood that she was disposing of assets to her sisters and the remainder to DeBellis. Mahaffey had “sufficient memory to 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.” There was not a noticeable difference in Mahaffey’s mental abilities or sharpness. Mahaffey handled her business like always and managed her own banking and financial accounts. Jesko always found Mahaffey to be of sound mind. Mahaffey was clear in her directions to Jesko regarding how she wanted her assets distributed and was able to articulate her reasons for making such a disposition. Throughout the will execution ceremony, Mahaffey was alert, lucid, and had all her mental faculties. She actively participated in the will execution ceremony by reading the documents one by one, signing each page, and expressing her satisfaction with the will’s provisions.

Id.

The court noted that the burden then shifted to the sister to create a genuine issue of material fact on mental capacity. The court noted that the sister presented no direct evidence that the testatrix lacked testamentary capacity on the day the will was executed. However, the court stated: “[e]vidence of incompetency at other times can be used to establish incompetency on the day the will was executed.” Id. A “testator’s mental condition on the date of execution may be inferred ‘from lay opinion testimony based upon the witnesses’ observations of [the] testator’s conduct either prior or subsequent to the execution.’” Id. The court held:

Thus, to successfully challenge a testator’s [testamentary] capacity with circumstantial evidence from time periods other than the day on which the will was executed, the will contestants must establish (1) that the evidence offered indicates a lack of testamentary capacity; (2) that the evidence is probative of the testator’s capacity (or lack thereof) on the day the will was executed; and (3) that the evidence provided is of a satisfactory and convincing character . . . .

“Importantly, the number of witnesses supporting or contesting the question of testamentary capacity is irrelevant. The only question [to resolve for a traditional summary judgment] is whether the testimony raised a question of fact.”

Id.

The sister provided some evidence showing that the testatrix was mentally incompetent both before and after the date the new will was executed. The court described that evidence as the testatrix having intense pain and taking medication for such pain. She was tired all the time, irrational, and forgetful to the point where she would easily lose her train of thought. The day before the will execution, her pain was so unbearable that she requested emergency assistance for pain relief. At some point later in the evening, she demanded all of her pills so that she could commit suicide. The testatrix refused hospice care and that included her pain relief medications, which showed that she was not thinking rationally because of the tremendous pain she was in. The day after the will execution, she again requested emergency assistance for pain relief. She  reported to EMS that she had been without her pain relief medications for twenty-four hours and her hospice care had been terminated the day before. Medical records showed that she experienced periods of confusion, fatigue, forgetfulness, and was prone to poor judgment. The court held that:

Viewing the evidence in the light most favorable to Crosswhite and indulging every reasonable inference in her favor, there is some evidence that Mahaffey, as a result of her declining condition, suffered from periods of confusion, a failing memory, and irrational decision-making on the day preceding and the day after the will’s execution. Given evidence of Mahaffey’s declining condition, periods of confusion, and worsening memory, there is a genuine issue of material fact as to whether Mahaffey possessed sufficient mental ability to understand the effect of making the October 25th Will…

Id. The court reversed the summary judgment and remanded for further proceedings.