law-legal-incapacity | mental impairment |


“Legally Incapacitated”
Sandra’s third allegation is that John is legally incapacitated from performing as independent
executor. This subsection, as we construe it, is inapplicable to an alleged conflict of interest. An
incapacitated person is “[a] person who is impaired by an intoxicant, by mental illness or
deficiency, or by physical illness or disability to the extent that personal decision-making is
impossible.”[33] A
conflict of interest does not make it impossible for someone to make
decisions. Nor was John under any other legal incapacity that prevented him from carrying out his
duties. Accordingly, the trial court did not abuse its discretion in failing to remove John as
independent executor on this basis.  
Kappus v. Kappus, No. 08-0136 (Tex. May 1, 2009)(Willett)
probate case, mere conflict of interest of independent executor not enough to warrant removal)