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Testamentary Capacity in Estate Litigation Disputes


You have worked hard to provide for yourself and your family. You carefully select who you want to give your possessions to after your passing. Even after all of this careful planning, someone can still challenge the validity of your will. Challenges to testamentary capacity are one of the most common causes of estate litigation.

What is Testamentary Capacity? 

Pursuant to Florida Statute 732.501, any person who is 18 or older and of sound mind may make a Will. Under Florida law, a Testator (the person who creates the Will) cannot execute a valid Will unless they are of “sound mind.” When a Testator has testamentary capacity, it means that the testator was of sound mind at the time he or she executed the Will.

How does a Court determine whether or not someone was of sound mind when they signed their Will? The court established the following test for testamentary capacity in In re Witt’s Estate, 139 So. 2d 904 (Fla. 2nd DCA 1962).

  • Was the Testator able to comprehend the nature and extent of his or her property?
  • Could the Testator identify the natural object of his or her bounty?
  • Did the Testator understand the effect and the purpose of the Will?

Florida Courts presume that the Testator had the necessary capacity to create a Will. As a result, if somebody wants to challenge the Will, they will have the burden of proving that the testator lacked the required testamentary capacity.

Generally, there is one recognized exception to this rule. If a Court has already adjudged the Testator to be incapacitated, the opposite is true. In other words, if someone is legally incapacitated when they sign the Will, the burden will be on the proponent of the Will to prove the Testator had the required testamentary capacity at the time of execution.

What Scenarios Can Constitute a Lack of Capacity? 

Under Florida case law, eccentricity, abuse of alcohol, drugs, and illness are not sufficient to prove a lack of testamentary capacity. However, if someone was so drunk that he or she couldn’t understand that she was signing a Will, a Court might rule that the Will is invalid.

A person’s chronic mental illness is probably not enough for a Court to invalidate a will. However, if someone suffered from an insane delusion at the time of signing the Will, the Court may invalidate it. The Testator may not have understood the purpose and effect of the Will while suffering from an insane delusion.

A Testator’s advanced age alone does not make them incapacitated in terms of creating a Will. The person challenging capacity based on age would need to show that the Testator could not comprehend the nature of his or her property, could not identify the natural object of his bounty and did not understand the purpose of his or her Will.

Contact an Attorney Today for Help

Whether you are contesting the testamentary capacity of someone else’s will or you would like to defend someone’s testamentary capacity, we are here to help. Pompano Beach estate and trust litigation attorney Mark R. Manceri has over 30 years of experience representing clients in testamentary capacity disputes. Contact us to set up your consultation today.


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