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How Do I Know If Someone Has Capacity to Make a Will in Florida?

Under Florida law, in order to make a will, you must be at least 18 years of age or an emancipated minor and be of sound mind at the time you execute a will.  If these criteria are not met, an heir, beneficiary or other interested party could contest the will after the decedent’s death on the basis that the decedent/testator (maker of the will) did not have the capacity to make the will, and the Florida Probate Court could rule that the will was invalid under Florida law. This would mean that the decedent died without a will, and the assets of the decedent would be subject to disposition under the intestate laws of Florida. The result could be that the decedent’s wishes are not carried out in the manner the decedent intended.

Florida Will Challenges

Testamentary capacity is one of the challenges that is most often made in Florida when a testator, is in poor health or under heavy medication. This is frequently the case with an elderly person. A person’s mental capacity to make a will is considered at the time they execute the will or a trust and not at the time of the person’s death. Therefore, in order to challenge a will in Florida, you must have sufficient legal grounds to prove the decedent was incapable at the time they made the will. The challenge must be made by filing a formal will contest with the Florida Probate Court.

It is important to remember that the person making the challenge will need to provide evidence that the decedent was incapable of making the will.  This can be done by providing the decedent’s medical records to the court and through testimony by the decedent’s physician, other health care providers and/or friends and family.

Keep in mind though that even if a person is ill, they may have temporary moments when they are mentally aware and capable of such tasks as making a will.  Since Florida will challenges are complex, the services of a Florida probate and estate attorney are necessary in connection with both filing a challenge and fighting them.

Jurisdiction to Determine Capability

The Florida Probate Court has the jurisdiction to determine whether or not the decedent was capable of making the will. If it is established that the decedent/testator was not of sound mind at the time of execution of the will, then it might be construed by the Court that the testator was under undue influence or coerced by someone or the will was forged at the time it was made, and that the testator’s actions were not voluntarily. Under those circumstances, the will would not be considered valid under Florida law.

Florida Statute 733.107

Under Florida Statue 733.107, a presumption of undue influence occurs when a person is influenced by someone who has a confidential or fiduciary relationship with the testator, or a beneficiary that will substantially inherit under the testator’s will who was “active in procuring the will,” which means they:

•    Were present when the testator expressed a desire to make the will

•    Recommended an attorney to draft the will

•    Had knowledge of the contents of the will

•    Provided witnesses prior to the execution by the testator

•    Kept control of the will after the testator executed it

The beneficiary would have to prove that they did not unduly influence the testator by giving testimony and providing evidence. If they cannot do so, then the person contesting the will would be able to move forward with the will contest.

Considerations for Testamentary Capacity

The Court will look at such factors as:

•    Timelines between the time the testator made the will and when the testator may have become incapacitated

•    Whether there was a prior will that was changed and how the changes impacted all the beneficiaries under the will

•    The relationship between the testator and the beneficiary receiving benefits from the changes to the will to determine undue influence or coercion

Therefore, it may look suspicious when a recently hired non-family member caregiver all of a sudden inherits a substantial portion of the decedent’s assets after the decedent’s death than if the testator made the bequeath to a long-term family member caregiver such as a daughter, son, niece, nephew or sibling, and the bequest was made several years before the testator passed away.

Here is a list of other Florida will challenge grounds


Seeking Legal Help

Before making a determination whether a testator has the capacity to make a will or making a will contest challenge, it is recommended that you speak with an experienced Florida probate and estate attorney. While Florida law allows will contests, the person making the challenge must have a valid claim. A Florida probate and estate attorney can best determine whether there are legal grounds to contest the will and represent the person making the claim. A Florida probate and estate attorney can also assist with the establishment of a conservatorship, estate planning strategies, represent estates, beneficiaries and interested parties in connection with routine estate administration and filing estate tax returns.

If you wish to speak to a Florida estate attorney, call the Law Offices of Albert Goodwin today.