Lack of Mental/Testamentary Capacity

Legal Guidance on Will Contests in Ocala

Florida law is not intended to uphold wills made by someone who lacks the mental capacity to know what he or she is giving away or what the will actually says. The person who makes a will is called a testator. While a testator having a mental illness does not mean that their will is automatically invalid, it may raise red flags that warrant further inquiry by a family member who does not believe the will is what the testator would have wanted if he or she were competent. The attorneys of the Dean Law Firm have helped countless family members in Ocala, Crystal River, The Villages, and other nearby areas deal with will contests related to testamentary capacity and other issues.

Challenging a Florida Will for Lack of Capacity

There has been an increase in probate litigation recently. Some of the reasons include the size of wealth transfers between those that are passing away and baby boomers. Another is the increase in an elderly population with serious psychiatric or medical issues at the end of life. One of the clearest safeguards against a challenge based on lack of mental or testamentary capacity is retaining a lawyer to draft the will and be present during its execution.

In order for a will to be valid, the testator must be of sound mind. This means that the testator must understand what it is to make a will, understand the nature of his or her property, understand the relationship of people who would receive the property after his or her death, and know the practical effect of the will and what a particular will says about the disposition of property. Old age and physical failings do not automatically establish someone's lack of testamentary capacity.

Once the testator has passed away, he or she cannot testify as to his or her mental or capacity. Therefore, the court must rely on other evidence. Typically, a lack of mental capacity or competence is shown by reference to a decedent's medical records and eyewitness testimony about the decedent's conduct at the time the will was made. Some potential eyewitnesses, if the decedent was not living with family at the time of death, include friends and neighbors of the decedent. Often there is competing evidence in these proceedings. There may be expert witnesses presented by those who stand to benefit from the testator's estate.

Florida law does not allow much time to contest a will. After a notice of administration is received, a person interested in challenging a will has only 90 days to gather arguments and evidence and file a lawsuit in probate court. If a formal notice of administration has been received before the will has been admitted into probate, the potential claimant has only 20 days to file a will contest in Florida.

Consult a Crystal River Will Contest Attorney

If you are facing a will contest in Marion, Sumter, Lake, Citrus, or Levy County, or another local area, you should consult an experienced probate litigation lawyer as soon as possible. For seasoned legal guidance in this complex and often emotional area of the law, call the Dean Law Firm at 352-387-8700 or contact us via our online form.