One of the ways that someone may challenge the validity of a will in Florida, is by alleging that the testator (the person who executed the will) lacked testamentary capacity when executing the will. If a testator lacked testamentary capacity when he or she executed the will, the will may be invalidated through a will contest proceeding. If you have doubts about the capacity of the testator of a will, you should talk to an attorney to see if the challenge of lack of testamentary capacity is argument that you can raise in the probate case.


What is the capacity to make a will? 

Under section 732.501, Florida Statutes, “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.” The key part of section 732.501 is whether or not the testator is “of sound mind.”

According to Florida case law, whether or not a testator was of sound mind is determined at the time the will was executed. “Sound mind means the ability of the testator ‘to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claims a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” Hendershaw v. Estate of Hendershaw, 763 So. 2d 482, 483 (Fla. 4th DCA 2000). Furthermore, the burden of proving a lack of testamentary capacity “is a heavy one and must be sustained by a preponderance of the evidence.” Id.

If a person is declared mentally incompetent, such as when a guardianship is entered over a person in Florida, that person is assumed to not have testamentary capacity to execute a will. If a will is executed after a person is declared mentally incompetent, then there must be a showing by the party seeking to admit the will into probate that the testator was having a “lucid interval” when the will was executed. American Red Cross v. Estate of Haynsworth, 708 So. 2d 602, 605 (Fla. 3d DCA 1998). Under Florida law, a “lucid moment is a time during which the testator returned to a state of comprehension and possessed actual testamentary capacity.” Id.


Who has the burden of showing that the testator did not have capacity at the time the will was executed?

Typically, if there is a challenge to the testamentary capacity of the testator to a will, the party challenging the testamentary capacity has the burden of showing that the testator lacked capacity when he or she executed the will. However, if the testator was declared mentally incompetent at the time the will was executed, the burden of showing that the testator had testamentary capacity at the time of execution shifts to the party who is attempting to admit the will to probate. That party will then need to show that the testator was experiencing a lucid interval when the will was executed.

As you can see, testamentary capacity can be a difficult issue to define in Florida and it is highly fact specific. Typically evidence in a case where the testamentary capacity of a testator is at issue will include both medical and lay witnesses. If a trial court finds that a party had testamentary capacity at the time the will was executed, the finding cannot be disturbed on appeal on account of reweighing the evidence. Sacchetti v. McDermott, 538 So. 2d 127 (Fla. 2d DCA 1989).


Contact us today for a free consultation if you think that you may need to contest a will in probate. 

If you think that a testator did not have testamentary capacity for a will that is being admitted to probate in Florida, you should talk with a Florida probate attorney right away. Also, if you’re on the other end of a will contest, you should have an experienced Florida probate attorney. The right probate attorney will be able to work with you in order to give you the best opportunity to make sure that the wishes of your loved one are carried out as they desired. Contact one of our Clearwater probate attorneys today to schedule a free consultation.

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