Many “Baby Boomers,” now nearing retirement age, have failed to adequately plan and save for their retirements. Some have anticipated inheritances from their aging parents to supplement, or even completely fund their retirements. When, as often happens, these Boomers discover that their parents left them less than expected, or left them out of their wills entirely, perhaps by favoring other children, friends, or even charities over them, these children increasingly turn to the courts in an attempt to set aside their parents’ wills. Conversely, often senior citizens are the subject of unscrupulous individuals who prey on their trust, loneliness, and their isolation or alienation from other family members. These individuals may persuade their victims, through fraud, pressure, or even mental coercion, to make substantial changes to their wills to exclude the natural heirs or other intended beneficiaries. The deserving heirs or beneficiaries must then look to the courts to correct the injustice.

This article will discuss the laws of testamentary capacity and the making of a will. These same principles also apply generally to the making of a trust and to lifetime gifts. The article will offer guidance on how a testator (the one making the will) can avoid a
successful challenge to his or her will after his or her death based on capacity. This article will also discuss factors a surviving heir should consider if there is a question about whether the testator had the requisite capacity to make the will.

While it is well established that the last will and testament is to be held valid wherever possible and the court should strive to carry out the true wishes and intentions of the testator, if a testator lacks “testamentary capacity,” or if the will is procured by “undue influence,” the will (or trust or gift) may be set aside. (the subject of undue influence is discussed in another article)

The requirement that a testator have“testamentary capacity” to make a will is expressed in Florida Statutes, Section 732.501, which requires that a testator be of “sound mind.” Testamentary capacity means the ability to understand: 1) generally the nature and extent of one’s property; 2) the relationship of those who would be the natural objects of the testator’s bounty (the testator’s family); and 3) a general understanding of the practical effects of his or her will. Contrary to popular belief, factors such as old age, physical failings, failing memory, or facilitating judgment in themselves do not establish a lack of testamentary capacity. In fact, courts have stated that that even a “lunatic” may make a will in a “lucid interval.” The burden of proving that the testator was without capacity to make a will is very high and whether or not the testator had sufficient capacity is a question depending on the facts of each case.

When testamentary capacity is an issue, or if there is a concern that there may be a challenge based on capacity in the future, it is appropriate for the estate planning attorney to ask a series of questions of the testator before his execution of the will. These questions
should elicit the testator’s knowledge of the extent of his estate - what he has - and the names and ages of his heirs and beneficiaries. The attorney should also thoroughly discuss the effects of the will and make sure the testator understands in a general way the effects of the document he is about about to sign. The attorney may also want to ask questions to show the testator was “oriented times 3” - meaning he has an awareness of who he is, where he is, and when he is (date and time). In the event of a later will challenge based on capacity, the attorney could be called to testify that the testator had the requisite capacity just before executing the will.

While there is no guaranty that one’s will cannot be challenged, following these suggestions will aid the testator’s personal representative and attorney defend a later challenge to insure that they carry out the testator’s final wishes. Likewise, if an expectant heir or family member considers the will to be contrary to the true intentions and desires of the testator, he would be wise to consider these factors in determining whether the testator had the capacity to make the will or whether the will may have been the subject of undue influence.

The law provides for a very short window of time to bring an action to contest a will subsequent to a testator’s passing. This time can be as short as twenty days after service of “formal notice.” Therefore, if one suspects that a will being probated was procured by undue influence or that the testator lacked the requisite capacity to make the will, he or she should contact an attorney immediately.

John W. Chapman, Jr. is the principal of the John Chapman Law Firm, P.A. located in Sarasota, Florida. He is board certified as a specialist in business litigation by the Florida Bar and practices primarily in the areas of construction, commercial, probate/trust and ad valorem tax litigation. Mr. Chapman is admitted to practice in all Florida state courts, the United States District Courts for the Middle and the Southern Districts of Florida, and the United States Court of Appeals, Eleventh Circuit. He offers representation in probate and trust disputes of all kinds, including will contests, estate disputes, contested guardianships and actions for removal of fiduciaries.