Testamentary Capacity

A last will and testament is an estate planning tool that may be used to determine how your assets and property will pass after your death. To ensure the validity of your will, it is important to create and execute it at a time when you have the legal and mental capacity to do so. To avoid issues of testamentary capacity that may arise, it may be prudent to retain a West Palm Beach estate planning lawyer to assist you. Attorney Jessica Mishali can provide guidance to individuals and their family members regarding testamentary capacity. From the estate planning process to will contest actions, they can protect your interests and help you further your goals.

Florida law provides legal requirements for the creation wills. One of those requirements is that the testator (the person making the will) has the legal ability to execute their will, which is known as testamentary capacity. There are two aspects of testamentary capacity. First, the testator must be 18 years of age or older or an emancipated minor. In most probate cases, there are clear-cut answers to questions concerning the testator’s age or legal emancipation. The second, and generally more complex component of testamentary capacity, requires that the testator be of sound mind to make their will. Most of the challenges brought on grounds of lack of testamentary capacity arise from this second element.

In Florida, a testator is of sound mind to execute a will when they are able to understand the nature and extent of their wealth, their relation to the family members and heirs who would typically benefit from the natural succession of their wealth, and the legal and obvious effect of the will as executed. In a practical sense, the standards are not difficult to meet. Individuals with any type of mental disability may make a will as long as they comprehend the effect and nature of executing their last will and testament, and as long as there is no evidence of undue influence. In addition, a person need not be of absolute sound mind and memory in every respect to have the testamentary capacity to execute their will. A person with a mentally degenerative disease or psychiatric disorder, for example, may have testamentary capacity to execute their will during an interval when they are of sound mind. A knowledgeable probate lawyer can evaluate the evidence in your specific case to determine whether it may support or refute a challenge based on lack of testamentary capacity.

When challenges arise as to testamentary capacity, the issue is usually a question of whether the testator was of sound mind at the time the will was created. Testamentary incapacity generally invalidates the entire will. Doubts as to whether or not the testator had testamentary capacity when the will was executed may be brought in a will contest action by a person with standing to challenge the will. If the evidence supports the finding that the testator lacked testamentary capacity to execute their will, the court may find the will invalid and to refuse to admit it to probate.

If you have concerns about testamentary capacity in a probate proceeding, or when making your own will, you can seek advice from qualified estate planning counsel. West Palm Beach attorney Jessica Mishali can assist people throughout Broward, Palm Beach, and Martin Counties, including in Boca Raton, Fort Lauderdale, Stuart, Royal Palm Beach, Wellington, Indiantown, Palm City, Pembroke Pines, Boynton Beach, Pompano Beach, Delray Beach, Jupiter, Davie, Coral Springs, Hallandale Beach, Hollywood, Plantation, Hobe Sound, and Jensen Beach. Contact The Law Office of Jessica Mishali, P.A. to arrange a consultation concerning a trust or estate planning matter. We are available by phone at (561) 833-2772 or online.