Can a person who has been declared incompetent in a guardianship proceeding still execute a valid will? Yes, depending on the circumstances.

  1. Recent Court Decisions
    Two Texas appellate courts have recently upheld wills that were executed during a guardianship or shortly prior to a guardianship.
  2. Rebuttable Presumption: No Capacity
    If the will was executed during a guardianship, there is a presumption that the testator lacked testamentary capacity. However, the presumption is not conclusive and it may be rebutted with evidence that the testator did have capacity on the day the will was signed.
  3. Different Standards of Capacity
    The legal standards for incapacity in the guardianship context and in the will execution context are different, so a guardianship finding does not necessarily control the testamentary capacity issue. Because of these different standards, a guardianship finding of incapacity does not operate as collateral or judicial estoppel in a probate proceeding.
  4. Conclusion
    If the testator is the subject of a guardianship, it will be more difficult to establish
    testamentary capacity. However, trial court findings of capacity in such situations have been upheld on appeal.