Estate of Koontz, No. 04-15-00820-CV, 2016 WL 6775593 (Tex. App.—San Antonio Nov. 16, 2016, no pet.).
The beneficiary of a prior will attempted to show
that Testator lacked capacity when he executed a new will revoking the
will that had named him as the beneficiary. The trial court granted the
executor of the new will a no-evidence motion for summary judgment and
awarded attorney’s fees against the beneficiary of the prior will.
The appellate court reversed. The court examined
the evidence, especially the affidavit of the beneficiary of the prior
will and the testimony of the attorney who drafted the new will, and
determined that there was enough evidence to raise a fact question
regarding Testator’s capacity. For example, Testator believed his wife
of over 50 years was having an affair, he attempted to lease property he
no longer owned, he was suffering from bipolar disorder, and he had
attempted suicide.
Moral: A summary judgment that a testator
had testamentary capacity is improper when there is “more than a
scintilla of evidence to raise a genuine issue of material fact with
regard to [the testator’s] testamentary capacity.” Koontz at *5.