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Florida Will Contests - Lack of Testamentary Capacity

Florida Will Contests - Lack of Testamentary Capacity

Persante Zuroweste handles probate litigation matters in Pinellas, Pasco, and Hillsbrough counties. If you would like a free consultation to discuss a potential will contest, please do not hesitate to contact our firm at (727) 796-7666.

Sound Mind

In Florida, a testator cannot execute a will unless they are of "sound mind." 

The statute provides that:

Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will. 732.501, Fla. Stat. (2015)

What is the legal standard for competency?

The standard appears rather simple. Testamentary capacity is merely one's ability to understand in general way nature and extent of property to be disposed of, his relation to those who would naturally claim substantial benefit from his will, and practical effect of his will as executed. In re Coles' Estate, 205 So. 2d 554 (Fla. 2d DCA 1968)

Courts have created a test for determining capacity:

1. Did the testator comprehend the nature and extent of his/her property?

2. Could the testator identify the natural objects of his bounty?

3. Did the testator understand the purpose and effect of the will?

Additionally, it is important to know that capacity is determined at the moment the testator executed the will. 

Presumption of Capacity

Florida law has created a presumption that the testator had the necessary capacity to execute the will. Thus, a person challenging the will has the burden of proving that the testator lacked testamentary capacity.

Interestingly, there is a presumption of incapacity if the testator had already been adjudicated incompetent.

An incompetent adult can execute during a lucid interval

Many people are surprised to know that competency is only determined at the time the will is executed. Simply because a person has dementia, does not necessarily mean that they lacked testamentary capacity when the will was executed. Many people that suffer from mental impairments have "good days and bad days." 

In Florida, a person who normally lacks testamentary capacity can execute a will during a "lucid interval." A lucid interval may be applicable even when a person has been adjudicated by a court to lack mental capacity. 

A will is invalid if executed during an insane delusion.

Even if a testator is normally of sound mind, a will may be invalid if the testator suffered from an insane delusion and the will was executed as a result of that delusion.

An insane delusion is a “spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.” McCabe v. Hanley, 886 So. 2d 1053, 1055 (Fla. 4th DCA 2004)

Common Misconceptions

In Florida, abuse of drugs, alcohol, and illness is insufficient alone to find that a testator lacked mental capacity. With that said, if a testator was so drunk that he did not understand what he/she was signing, the will would be invalid as a matter of law. Age is not a factor, and the mere fact that a person is eccentric does not mean they lack testamentary capacity.


Contact Us:

PersanteZuroweste handles Estate and Probate litigation matters. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.