Le v. Nguyen: Evidence Supported Decedent's Lack of Capacity

"Deathbed" wills are often suspect, with this case a compelling example. According to the facts set out in the Houston (14th) Court of Appeal's decision, the decedent's sister hired an attorney to prepare a new will while he was in hospital and dying of cancer.  He signed the will four days before he died. The jury found that decedent lacked capacity to execute that will. In affirming the jury's verdict, the Court of Appeals noted that the testimony and related evidence was conflicting. However, the Court noted that there was sufficient evidence of lack of capacity, including: Alex was in the final stages of gastric cancer, suffering great amounts of pain as a result, and was receiving medication to relieve that pain including regular sedation. . . .  Several witnesses testified that Alex could not talk on December 31 and communicated his wishes by nodding his head. However, Linh testified that in Vietnamese culture, nodding one’s head can signify agreement with the speaker or merely recognition that the speaker was talking. The court also noted several factual mistakes in the will, including an assertion that decedent was not married, when he was.  The will also named a deceased person as an alternate guardian of decedent's minor children. In my practice, I often find that such mistakes provide compelling support for a will contest.  Sometimes names are mispelled, addresses are incorrect, or children are ommitted entirely.  Given the importance of a will, one would expect that the testator would review the document carefully and correct mistakes.