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How an attorney assesses a testator’s testamentary capacity

For a person to execute a valid will, they must demonstrate that they have testamentary capacity. An individual must be at least 18-years-old to become a testator, or person who drafts a will, here in Florida.

That same individual must show that they have the mental capacity to understand what the purpose of a will is. They need to know about the property that they own, who their potential heirs are and how they want to dispose of their property. This is what a person must do to show that they have the requisite testamentary capacity to draft a will.

Testamentary capacity is important. It’s common for a Miami judge to call a testator’s loved ones, doctors or attorneys into the courtroom to confirm that they had the mental capacity to understand what they were doing when they drafted their will. If the court finds that the testator did not, then they may invalidate that individual’s will.

Miami probate judges generally don’t concern themselves with whether a person lacked mental capacity before or after drafting their will. All that they’re required to make sure of is that the testator exhibited testamentary capacity at the time the will was executed. If their mental capacity deteriorates after the will come into fruition, then that generally has no bearing on the will’s validity.

If the bulk of a testator’s estate is earmarked for someone other than immediate family members, then those interested parties, or anyone who expected to be an heir, may question if the testator was subjected to some type of undue influence from someone else.

An attorney has a fiduciary duty to ensure that a person has the mental capacity to create a will. If a person has insane delusions or appears to be suffering from undue influence, then a lawyer may determine that they’re not of sound mind enough to draft a will.

If you believe that your close relative who died wasn’t mentally competent enough to draft a will or that they were subjected to the undue influence of someone else, then you should consult with an attorney. Your lawyer can advise you of the legal remedies that you can pursue in your Florida case such as contesting your loved one’s will.



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