November 13, 2012
Many consider wills that are made and executed on the deathbeds of their respective testators suspect because of the circumstances under which they are made. There are often problems with capacity and the following case illustrates that. In Houston, Texas "the decedent's sister hired an attorney to prepare a new will while he was in hospital and dying of cancer." The will was completed and the decedent signed the will shortly before he died.
In Le v. Nguyen, a jury held against the sister and found that her brother lacked the capacity needed to execute a will. The 14th Court of Appeals of Texas affirmed the ruling on the basis that there was sufficient evidence to support a finding of lack of capacity. The court took particular note of that fact that the decedent, Alex, could not talk and could only communicate by nodding his head. This became important because a witness testified that in the Vietnamese culture, nodding a person's head does not necessarily signify agreement, it could merely be an acknowledgement. The will also contained factual mistakes, which could signify that the testator lacked capacity. It is often implied that a testator would not make such simple mistakes, such as whether he was married, on a document that important.
See J. Michael Young, Le v. Nguyen: Evidence Supported Decedent's Lack of Capacity, Texas Probate Litigation, Nov. 1, 2012.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
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