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Trusts and Estates No. 05-02-00160-CV, 5/1/2003. Click here for the full text of this decision FACTS: Ronald J. Krause, as independent executor of the estate of Albert L. Blakes, deceased, appeals a judgment following a jury verdict setting aside Albert L. Blakes’s last will and testament. In eight issues, Krause contends there is no or insufficient evidence to support the jury findings of lack of testamentary capacity and undue influence and it was prejudicial error to allow certain deemed admissions to be read to the jury. HOLDING: Affirmed. Krause challenges the factual sufficiency of the evidence to support the jury’s finding that Blakes lacked testamentary capacity. A testator has testamentary capacity when he has sufficient mental ability to understand he is making a will, the effect of making a will, and the general nature and extent of his property. He also must know the natural object of his bounty, the claims upon them, and have sufficient memory to collect in his mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them. In a will contest, the pivotal issue is whether the testator had testamentary capacity on the day the will was executed. However, evidence of the testator’s state of mind at other times can be used to prove his state of mind on the day the will was executed provided the evidence demonstrates a condition affecting his testamentary capacity was persistent and likely present at the time the will was executed. The medical records and testimony indicate that Blakes had reached the terminal stage of his illness and was admitted to the hospital in a state of confusion and dehydration just five days before he executed the will. Dr. James Grigson, an expert witness hired by Alyce, testified that Blakes showed signs of confusion from the time he was admitted up until the time of his death, although he did show some improvement after he was rehydrated. Nurses’ notes indicated that he was “confused” at about 5 a.m. on the day he signed the will. Dr. Grigson also testified that based on his review of the medical records, Blakes’s depression, pain, his mental state, confusion along with the spread of his cancer, the liver failure and anemia made it impossible for Blakes to have testamentary capacity on the day the will was executed. Dr. Peter Beitsch, Blakes’s treating physician, testified he visited Blakes in the hospital about once or twice a day. Beitsch noted Blakes was on a fairly regular dose of narcotics to keep him out of pain but pain medications were withheld by request the morning before the will was executed. Beitsch indicated that during his visit at 9 a.m. or 10 a.m. on May 25, Blakes knew who he was and where he was, although he was weaker and more tired than before. Beitsch also testified that during the last hours of his life, Blakes became confused anddisoriented. The witnesses and the notary testified they had a limited recollection about Blakes’s execution of the will. Although one witness remembered exchanging pleasantries with Blakes and that he recognized her, no one recalled any details of the will execution. Podsednik testified that he summarized the contents of the will for Blakes and then watched Blakes flip through the pages before signing. Although there was testimony concerning certain errors in the will, including an incorrect statement that it was being signed in Arlington, there was no evidence that Blakes asked any questions about the will after he purportedly reviewed it. There was additional testimony that Blakes recognized and visited with family on the day he executed the will. After reviewing the record, the court cannot conclude the jury finding of lack of testamentary capacity was so weak as to be unjust. Even disregarding the deemed admissions of which Krause complains, there is ample evidence from which a jury could conclude that Blakes’s physical and mental condition had deteriorated to a point where he no longer had testamentary capacity. OPINION: Lagarde, J.; Moseley, Lang and Lagarde, JJ.

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