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Testing for Testamentary Capacity

Florida law requires that a person be of “sound mind” in order to make a Will. This is also known as having “testamentary capacity.”

The test for testamentary capacity is whether the person making the Will has the ability, at the time the Will is being made, to understand (1) the nature and extent of the property to be disposed of, (2) the maker’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. In short, the person making the document must have a general understanding of the effect of the document.

Although testamentary capacity is presumed, the most common method of contesting an estate plan is by claiming that the individual lacked testamentary capacity. This is especially true if the individual was elderly or very sick at the time the document was signed. The law does not prescribe an age limit beyond which a person may not dispose of property, but diminished capacity is more common in clients who are of advanced age. The longer one waits to make a Will the greater the chance an unhappy relative may claim that he or she was of unsound mind.

In order to combat such potential claims a skilled attorney will conduct a thorough interview with their client asking pointed questions designed to assess capacity. They can also recommend that the client meet with their doctor the day the Will is executed to further confirm that mental health is not at issue. The more involved professionals are the greater the argument that capacity cannot be questioned.

If you have questions about capacity or think that a family member did not have testamentary capacity for a Will that is being admitted to probate, I would encourage you to call 386-257-1222 in order to schedule a consultation.