Will Contests: Lack of Capacity

Fri May 31, 2024 | Estate Planning | Share

One of the most common bases for challenging a will is to claim that the testator (the person who is making the will) lacked testamentary capacity. For a will to be valid and enforceable, the law requires that the person making the will be of sound mind – meaning that they know what assets they have, who their heirs and beneficiaries are, and understand the content and implications of their will. If it can be proven that they lacked testamentary capacity, the will may be set aside in whole or in part. If you are involved in estate proceedings where the testator’s mental capacity may be an issue, we recommend contacting an experienced will contest lawyer as soon as possible. 

How Testamentary Capacity Issues Arise

To be clear, the fact that the testator was mentally incapacitated toward the end of their life is irrelevant if their will was drafted when they were lucid and of sound mind. Challenges based on testamentary capacity tend to arise in the following situations: 

• The testator did not create their will until later in life when signs of dementia or other cognitive impairments began to surface
• The testator made significant changes to their will when they were beginning to experience cognitive impairments
• The testator created an entirely new will at a time when their mental capacity was beginning to decline

Certain changes, such as one beneficiary suddenly being disinherited or another beneficiary being granted significant advantages over others, can signal potential issues. If you have concerns that mental capacity may be an issue in your estate case, a will contest lawyer can review the situation and explain your options. 

Identifying Lack of Testamentary Capacity

It is not uncommon for older people to update their estate plans even after they begin to experience cognitive decline. A person who has mild or moderate symptoms of decline but has periods of lucidity does not necessarily lack mental capacity and can still create a valid will. Here are some signs that the testator may have lacked testamentary capacity when making or amending their will: 

• They could not identify or remember specific heirs or beneficiaries
• They did not know what assets or property they owned
• They did not understand the implications of their will 
• They were generally paranoid or delusional

You should contact a will contest lawyer if the testator exhibited these or similar symptoms at the time when they were making their will. 

There is a Presumption of Capacity

Under Florida law, the probate court will presume that the testator was of sound mind when they executed the will. This means that the estate does not need to prove that the testator had testamentary capacity. Instead, the beneficiaries or heirs who believe the testator lacked testamentary capacity carry the burden of proof. If they cannot prove that the testator lacked the appropriate mental capacity, the probate court will distribute the assets of the will according to its terms. 

Do You Have Standing to Challenge The Will Based on Lack of Capacity?

Florida law allows only “interested parties” to contest the will. An interested party is someone who would be affected by the administration of the estate, whether according to the terms of the will, by intestate succession, or some other competing estate planning document. For example, interested parties could include the following: 

• Members of the testator’s family who would inherit by intestate succession if the will were deemed invalid
• Beneficiaries of the current will who would inherit a greater share by intestate succession if the will were deemed invalid
• The personal representative
• Creditors whose claims would be compromised by the existing will

Friends of the testator who do not receive anything from the current will are unlikely to be able to challenge the will. A will contest lawyer can review your case and determine whether you have standing to challenge the will if you believe there was a lack of testamentary capacity. 

Proving Lack of Testamentary Capacity

If you have an interest in the estate, you can challenge the will based on lack of capacity but you need to be able to prove your claim. Again, you must be able to prove that the testator lacked the capacity at the time they executed the will. This can be very difficult in situations where the testator had mental issues but also had periods of lucidity. 

Generally speaking, lack of capacity claims will rely upon two types of evidence: 

1. Medical records that document the testator’s lack of medical capacity; and
2. Witness testimony from people who knew the testator and observed their lack of capacity. 

The testator’s medical records may be difficult to obtain without a subpoena. If you can get them, they will hopefully clearly establish the testator’s mental state at the time they were drafting their will.  

Even if you have medical records, you will probably still need witness testimony. You may have to have several witnesses to testify in order to comprehensively demonstrate the testator’s mental health at the time they executed their will. For example: 

• You may have the testator’s financial planner testify that the testator had repeatedly forgotten about several significant investment accounts around the time they drafted their will.
• You may have the testator’s brother testify that the testator did not recognize him on several visits in the time leading up to drafting the will. 
• You may have the testator’s adult son testify that the testator did not really understand what would happen to their beneficiaries as a result of the will. 

An experienced will contest lawyer will know how to gather the medical documentation and develop the testimony you need to challenge the will. 

Talk to a Will Contest Lawyer at Ellis Law Group Today

Engaging in a will contest can be a difficult and expensive process, so it is important to get someone who knows how to get results. A will contest lawyer from Ellis Law Group can evaluate your claim, explain your options, and then work with you to develop an effective legal strategy. To discuss your case and how we can help, contact us today at 561-910-7500 to schedule a consultation.