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Lack of Capacity > Lack of Capacity

Lack of Capacity

When Florida Wills are Legally Invalid Because of the Decedent’s Inability to Mentally Understand

Under Florida law, wills can be held invalid no matter how official they appear because of errors in the document itself (lack of valid signature, etc.) or because of the bad actions of another (e.g., a caretaker who manipulates the person into leaving them everything). Florida judges will also find a will invalid if everything looks okay in form and no one was trying to unduly influence the decedent if the judge determines that there is a problem with the decedent himself at the time that the will was executed.

Lack of Capacity under Florida Law

Florida Statute 732.501 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.” What exactly is a “sound mind” for the purposes of making a will under Florida law?

Florida law will not allow a Will to be respected no matter how solid it seems if the testator (creator) of the Last Will and Testament did not have a sound mind, i.e., the necessary ability under Florida law to understand and comprehend:

  • The amount of property involved;
  • The kind of property involved (real estate, money, stocks, jewelry, pets, etc.);
  • The individual who would usually receive the bequest (their spouse, their son, etc.); and
  • How the will actually disposes of the property (what is given, and who gets it).

Florida Cases Challenging Wills Because of Capacity of the Person Making the Will

Not only does Florida have a larger population of people over the age of 65 years than other states may have, but Florida courts have a greater number of lawsuits filed contesting the validity of wills based upon capacity of the testator than many other states.

The question becomes – not only for the Florida lawyer but for the Florida courts – just how does someone determine the mental capacity of an individual who has passed away?

  • And when does capacity matter?
  • Must capacity be proven to exist during the entire process of creating and finalizing the will?
  • Can capacity be shown to exist only at the time that the will was signed in front of witnesses?
  • If a person has been diagnosed with bipolar disorder or dementia, then can they ever draft a valid will under Florida law?

Florida lawyers involved during the making of the Will are critical here: these probate attorneys must be a safeguard for their clients in making sure that the client does have proper mental capacity to sign a valid will. To this end, the American Bar Association has drafted a “Legal Capacity Questionnaire” to assist lawyers when wills are being drawn up as a suggested screening tool.

However, after the person has passed away, the evidence of an attorney using a questionnaire may be just one piece of evidence in a trial challenging a will based upon the person’s mental capacity at the time. Issues of psychological disorders, physical illnesses, and more can all be part of the lawsuit as evidence is presented to the court on whether or not the decedent had the capacity to mentally understand what was being done and why in the document being presented for probate as his or her Last Will and Testament.

How a Florida Lawyer Can Help in Determining a Valid Will and Testamentary Capacity

When a will may or may not be valid because of the mental incapacity of the person who made the will, then personal representatives, family members, beneficiaries, and potential heirs can all become involved in a complicated Florida lawsuit as the legal issues are resolved over the mental abilities of the person at specific times prior to his or her death, as well as what Florida law will provide if the will is, or is not, found to be valid.

Challenges to wills in Will Contests based upon mental capacity (“testamentary capacity”) of the person who has passed away can be very complex as well as very emotional for all parties involved. These situations must be handled with respect for the decedent in either his or her circumstances as well as in determining his or her true intent in how their property was to be bequeathed after they died.

Accordingly, having a Florida lawyer who is experienced and empathetic to the multi-faceted issues which arise in capacity challenges to a will can be invaluable for all concerned.

Fort Lauderdale Lawyer Larry Tolchinsky Helps Clients Dealing With Testamentary Capacity Claims

Florida probate lawyer Larry Tolchinsky has worked with situations where all sorts of issues impacted upon allegations of incapacity of the decedent in order to challenge the validity of a Last Will and Testament. For clients living both in Florida as well as those dealing with Florida Will issues from their residences in other states and countries, Larry deals with capacity challenges to wills filed in Fort Lauderdale, Broward County, and throughout the State of Florida.

Larry understands that medications, time of day, and many other factors – even the food the person ate that day – can play a role in determining if the person had the required mental capacity under Florida law to execute a valid and legally binding document. Mental capacity claims can be complicated and each case can be as different and unique as the individual involved.

As a Florida probate attorney, Larry also handles estate issues such as management of business interests, debts owed by and to the decedent, and real property concerns. In fact, Larry represents clients in probate matters related to a full spectrum of probate issues and controversies such as:

  • Summary Administration
  • Ancillary Probate
  • Trust Administration
  • Trust Litigation
  • Will Contests
  • Post Mortem Estate Planning
  • Undue Influence and Lack of Capacity claims
  • Wrongful Death Claims
  • Locating Heirs
  • Sale of Real Property
  • Undue Influence and Lack of Capacity claims
  • Abuse of Power of Attorney

Contact an Experienced Broward County Probate Attorney

Contact Larry Tolchinsky to find out how he can help you. You can contact him by phone at 954-522-0207 or by e-mail through this web site to schedule an appointment and learn more about Broward Probate law. He offers a free initial consultation.


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