Court Affirms Finding That Settlor Did Not Have Capacity To Execute A New Will Based On Conflicting Evidence After A Jury Trial

By David Fowler Johnson

In Bernsen v. Allison, the settlor signed a new will in December of 2012 that left everything to his daughter and omitted the children from his deceased son. No. 14-22-00902-CV, 2025 Tex. App. LEXIS 5171 (Tex. App.—Houston [14th] July 22, 2025, no pet.). The grandchildren contested this will on the basis of mental incapacity. After a two-week trial, the jury found that the settlor did not have capacity, and the daughter appealed.

The court of appeals noted that under Texas law, a testator must, at the time of signing a will, have sufficient mental ability to: understand that a will is being made, understand the effect of making the will, understand the general nature and extent of their property, know their next of kin and natural objects of their bounty and their claims, and have sufficient memory to collect in their mind the elements of the business to be transacted and to form a reasonable judgment as to these elements.

The evidence showed that in November 2012, a geriatric psychiatrist diagnosed the settlor with “generic dementia Alzheimer’s type with behavioral features” and informed the daughter that the settlor was “100 percent without capacity.” Then on December 18, 2012, the settlor signed a new will. The daughter had written to the attorney drafting the will on December 10, 2012: “I think we should sign the docs and let them try to prove incompetence.”

Some witnesses (tenants, friends, professionals) testified that the settlor appeared competent. Other witnesses (family, neighbors, insurance employees) described confusion, memory loss, and behavioral issues consistent with dementia. The daughter presented two medical experts who did not personally examine the settlor but opined, based on records, that he had testamentary capacity.

The jury found that the settlor lacked testamentary capacity at the time of the will’s execution and also found the daughter lacked good faith and just cause in offering the will for probate. The court of appeals found that the evidence was legally and factually sufficient to support these findings. The December 2012 will was not admitted to probate and the daughter was not awarded her attorney’s fees.