Obtaining the testator's medical records in a Texas will contest

Many will contests are based upon an allegation the testator lacked capacity when executing the will at issue.  In such cases, it is important to obtain the testator's medical records.  Records indicating any form of dementia, including alzheimer's, are powerful evidence that a will should not be probated. However, medical records are protected from disclosure in this age of HIPAA restrictions. Typically, the patient must sign a HIPAA compliant release.  Of course, that isn't possible in a will contest. Fortunately, Texas law provides a mechanism to obtain a deceased person's medical records.  Texas Probate Code 10B provides:

Notwithstanding the Medical Practice Act, a person who is a party to a will contest or a proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent's death as part of the party's claim or defense is entitled to production of all communications or records relevant to the decedent's condition before the decedent's death. On receipt of a subpoena of communications or records under this section and proof of filing of the will contest or proceeding, by file-stamped copy, the appropriate physician, hospital, medical facility, custodian of records, or other person in possession of the communications or records shall release the communications or records to the party requesting the records without further authorization.

When requesting a testator's medical records from a physician or hospital, I include a copy of that statute along with my petition contesting the will. Contesting a will in Texas.