Case Illustrates Law Regarding Challenge to Testamentary Capacity

A recent case illustrates the law related to testamentary capacity and shows the kind of testimony that is relevant in cases where a challenge to capacity occurs.

Photo by Ryan Stone on Unsplash


Ava Mahaffey signed a will and a self-proving affidavit on October 25, 2016.  The will was witnessed by Morgan Wayne Dale and Elizabeth Jesko, the attorney who drafted the will.  The affidavit was notarized by Jesko’s assistant. The will made bequests to three of Mahaffey’s sister, but excluded the fourth sister, Ms. Crosswhite.  The residuary clause left Mahaffey’s residual estate to her late husband’s great niece, Ms. DeBillis.  Ms. Mahaffey died nine days later of pancreatic cancer.

Ms. DeBillis sought to have the October 25 will admitted to probate.  Ms. Crosswhite objected, claiming that Ms. Mahffey lacked testamentary capacity to execute a valid will on October 25.  Instead, Ms. Crosswhite sought to admit a will that Ms. Mahaffey executed on October 6, 2016.  The October 6 will was also drafted by Elizabeth Jesko and left the residue of the estate to Ms. Crosswhite, rather than Ms. DeBillis.

Ms. DeBillis filed a motion for summary judgment, arguing that she had offered evidence to conclusively prove Ms. Mahaffey had testamentary capacity on October 25.  The court granted the motion and dismissed the case.  Ms. Crosswhite appealed, arguing she presented genuine issues of material fact, which should result in the summary judgment motion being denied and the case proceeding to trial.

Law Regarding Testamentary Capacity

In order to execute a valid will, the testator must be “of sound mind, which means having testamentary capacity at the time the testator executes the will.” A person has testamentary capacity if he or she has the mental ability to: (1) understand the effect of making the will and the general nature and extent of his or her property; (2) know his or her next of kin and the natural objects of his or her bounty; (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.  The burden of proving these elements rests on the person seeking to admit the will to probate.  In this case, the burden of proof was on Ms. DeBillis to prove these elements.  If the proponent is successful in offering this proof, the burden then shifts to the challenger to raise a genuine issue of material fact as to Mahaffey’s capacity.

If there is no direct evidence that a testator lacked capacity on the date of execution, “evidence of incompetency at other times can be used to establish incompetency on the day the will was executed” if there is some evidence that the “condition persists and has some probability of being the same condition that existed at the time the will was made.”


The San Antonio Court of Appeals reversed.  [Read full opinion here.]

First, the court ruled that Ms. DeBillis satisfied her burden of proof regarding the elements of capacity.  Jesko testified that Ms. Mahaffey contacted her about drafting the October 25 will on October 24. She stated that she wanted to disinherit Ms. Crosswhite, revoke her power of attorney, and to add DeBellis to her will and as power of attorney. Jesko went to Ms. Mahaffey’s home on October 25 and found her alert and sitting in bed with a clipboard, pen, and checkbook.  The women made small talk, and Mahaffey confirmed her wishes to change the will.  Jesko testified she understood the nature of her property including her home and certain bank accounts.  She recounted her family history, including listing family members.

Ms. Dale, a long-time friend of Mahaffey’s, served as a witness to the execution.  Dale confirmed Mahaffey’s desire to disinherit Crosswhite and testified that throughout her illness, Mahaffey handled her business normally, managed her own banking, and kept perfect books.  She testified that on October 25, Mahaffey had all her mental faculties.

This evidence satisfied Ms. DeBillis’ burden of proof, and the burden then shifted to Ms. Crosswhite to offer evidence to show a genuine issue of fact existed as to capacity.

Ms. Crosswhite testified that as Ms. Mahffey’s cancer progressed, she became more and more confused and unable to concentrate.  Crosswhite recalled visiting in mid-October and Ms. Mahaffey serving her cold green beans as a meal.

On October 24, her pain was so severe that she called EMS and reported taking a total of 7 hydrocodone pills in 8 hours.  That evening, Crosswhite testified that Ms. Mahaffey requested Crosswhite to give her all of her pills at once so she could commit suicide.  Ms. Crosswhite refused to do so. Crosswhite called the police and hospice for help. A hospice nurse testified taking a call that night where Mahaffey said she was going to take all of her pills to end her life.  The nurse arrived at the residence and Ms. Mahaffey ordered the nurse and Crosswhite out of her house and revoked her hospice care, which resulted in all pain medication being removed from her home. Ms. Dale, one of the witnesses to the will, testified that when Mahaffey revoked her hospice care, she was not thinking clearly.

On October 26, the day of the will execution, Mahaffey again requested emergency assistance for pain relief. She had been without pain medication for 24 hours due to the termination of hospice care. A Plan of Care and Treatment from her doctor and new hospice provider on October 26 stated that Mahaffey “experienced periods of confusion, fatigue, forgetfulness, and was prone to poor judgment.”

The court found that Ms. Crosswhite introduced sufficient evidence on the question of capacity to allow the case to go forward.  Given her declining condition, periods of confusion, and worsening memory, there was a genuine issue of material fact as to her capacity and summary judgment was improper. Thus, the court reversed and remanded the case back to the trial court for further proceedings.  No appeal was filed.


First, keep the procedural posture of this case in mind. The Court of Appeals did not make a ruling on whether Ms. Mahaffey had capacity or not. The court only decided there was enough evidence to raise a factual question that should be determined by the fact finder at trial.  A trial will determine whether Ms. Mahaffey had sufficient testamentary capacity.

Second, this case illustrates the importance of having an estate plan in place before someone is in failing health.  Looking at the analysis in this case, the issue of testamentary capacity could certainly arise for anyone executing a will close to his or her death.  Having a will and other estate planning documents in place before one is near death may help avoid this type of challenge.

Third, if a person is near death and does wish to change his or her will, it will be important to ensure evidence of capacity when the will was executed.  Having several witnesses who are able to testify about the person’s condition the day of the execution will likely be extremely important.

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