We’re pleased to announce that

Ellis Law Group has joined
Wiggin and Dana LLP


For any questions,
please contact Seth Ellis.

Probate Issues: Lack of Capacity

Tue Nov 16, 2021 | Probate |

In order for a will to be considered valid, Florida law has several requirements such as the following: 

  • The will must be in writing
  • It must be signed by the person making the will
  • It must be signed by and in the presence of two witnesses

If your will fails to meet the requirements imposed by Florida law, it will be declared invalid when submitted to probate. 

One of the most important requirements in addition to the ones enumerated above is that the person making the will must be of sound mind. Sometimes referred to as testamentary capacity, it is also one of the ways that a will can be challenged. If you are a party to a will with potential issues surrounding the testator’s mental capacity, you should contact a Boca Raton probate litigation attorney as soon as possible. 

What is a Lack of Capacity?

When someone argues that the will is invalid due to the testator’s lack of capacity, they are asserting that the testator did not have the presence of mind to understand one or more of the following related to the creation of their will: 

  • The nature and extent of the property they are transferring via their will; 
  • Their relationship to the beneficiaries of the will; 
  • The purpose and effect of their will. 

To be clear, the testator must be of sound mind when the will is drafted and signed by the testator – their mental capacity after that fact is irrelevant. An experienced Boca Raton probate litigation attorney will be able to evaluate whether there was a lack of capacity in your case. 

Capacity Is Presumed

Florida law creates a presumption of capacity, meaning that the probate court will presume that the testator was of sound mind when the will was created. As a result, any parties that believe the testator lacked capacity when they executed the will carry the burden of proof. 

The question then becomes how to prove that the testator lacked the requisite mental capacity when executing their will. While the criteria listed above seem straightforward, proving lack of capacity is actually quite difficult. The testator cannot testify on their own behalf and there are often no medical records or other documents that clearly indicate whether the testator was of sound mind. 

Generally speaking, it often involves testimony from friends and family members who spent time with the testator at the time they executed the will who can speak to the testator’s mental state at that time. A skilled Boca Raton probate litigation attorney will know how to prove lack of capacity as well as how to defend against such accusations.

Work with a Boca Raton Probate Litigation Attorney from Ellis Law Group

Will disputes are never pleasant, and especially so when it involves the testator’s mental capacity. If you are facing this issue, we can help get it resolved quickly and compassionately. To discuss your case and how we can help, call us today at 561-910-7500 or fill out our online contact form to schedule an appointment.