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Testamentary Capacity In Florida Estate Planning


Making a will, trust, or any other estate plan documents requires the person to be of sound mind. Determining how assets will be distributed after death is a decision that many people take seriously, so it’s important that estate planning documents be prepared only when the testator (the person signing the will) is mentally capable to do so.

Defining “of sound mind” in Florida

 Florida law defines “of sound mind” as follows:

“having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed.” Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. 3d DCA 1998).

In other words, the person who makes the will needs to understand the property they are listing in their estate, their relationship to people who would benefit from the will, and how their assets will be distributed under the will.

While this is not a high burden, it does require the person making their estate to be lucid at the time they sign their estate planning documents. Someone who has Alzheimer’s disease or dementia may or may not have enough lucidity to sign a will. If you are at risk for developing a disease, it’s important to have your estate plan documents in order before you receive a diagnosis. This way, you can ensure that your assets are distributed to your family according to your wishes.

Contesting a will due to insufficient testamentary capacity 

It’s unfortunately all too common to find that a caretaker has exerted undue influence on their charge, and encouraged them to distribute assets not to their family, but to the people entrusted with their care. This is a form of elder abuse.

On the one hand, Florida policy believes in the importance of holding wills valid. On the other hand, Florida recognizes the potential to exert undue influence over someone making a will, especially if that person lacks the mental capacity to sign this sort of legal document. In cases where someone held undue influence over a testator, Florida courts will put the burden on the person who held the influence to prove that the will is valid.

If you believe that a will was drawn up at a time where your relative was not of sound mind, you may have a right to contest the will in court. If the court finds that the most recent will is invalid due to lack of testamentary capacity, the court can revoke that will.

Contact an estate and probate litigation attorney 

Estate and probate litigation can be complicated and time consuming. This is a time when emotions run high in families and it can be difficult to determine what is right and fair. An experienced Pompano Beach estate and probate litigation attorney at the office of Mark R. Manceri, P.A. can help your family sort out a legal web after your loved one passes.



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