Lack of Mental Capacity

Wills, trusts and guardianships can be disputed on numerous grounds, including lack of mental capacity. When the mental capacity of an individual who executed a will or trust is in question, our Fort Lauderdale probate litigation lawyers can help you in filing a legal challenge to declare the will and trust of the testator (person making the will or trust) is not a legally enforceable document.

F.S. 732.501 stipulates only those who are “of sound mind” can make a will. That seems straightforward, but as we at The Ansara Law Firm can explain, the determination can be complex, and may require extensive research and investigation.

Possessing sufficient mental capacity to execute a will requires understanding and comprehension of:

• Nature of property and the amount of it;
• Nature of his/ her testamentary actions;
• His/ her relationship to individuals who would receive that property;
• How the document will be effected to actually dispose of his or her property.

We have seen this standard outlined in numerous Florida cases, including In re Wilmott’s Estate, a 1953 decided by the Florida Supreme Court.

Simply having a mental illness or disease won’t automatically result in a court finding that the will or trust is unenforceable. Usually, what’s needed to prove a lack of mental capacity in a will contest in Fort Lauderdale or elsewhere in Florida are:

• Medical records;
• Evidence of irrational conduct;
• Evidence of incompetence;
• Testimony of individuals who were present when decedent drafted/ signed the documents or observed decedent around the time it was executed.

As noted in Wilmott, a person might be very sick and possibly even near-death at the time a will is signed, but this alone won’t mean a person is not of sound mind. So long as someone understands the requisites as outlined, the Wilmott court noted, a will might still be valid, even when the individual is elderly, feeble, with failing memory or vacillating judgment. This is especially true if when the will appears to have been made fairly.

A “fair” decision would take into account equitable distribution of assets and consistency with what was known to be in line with the long-term commitments and values of the person making the will.

The American Bar Association has recommended attorneys helping with execution of a will conduct a Capacity Assessment. This serves as a screening tool for who may be “of sound mind” to execute a will or establish a trust, and it can be important in cases where the question may arise later. Success in the capacity assessment doesn’t guarantee the document will be enforceable, but it can make for a good argument. The assessment is a checklist that notes observational signs of diminished capacity in the areas of:

• Cognition. These could be things like short-term memory loss, communication problems, issues with comprehension, a lack of mental flexibility, disorientation or difficulties with simple math (even considering education).

• Emotion. These would be issues like severe emotional distress or displays of extremely inconsistent/ widely varying emotions.

• Behavior. These could include delusions or hallucinations, as well as poor hygiene.

Mitigating factors could alter the weight of each observation. For example, if a testator had suffered recent stressful events, resulting in depression, poor hygiene and other issues, that doesn’t necessarily mean they were of unsound mind. There are also situations wherein a person’s individual cognition fluctuates, which can mean he/ she was of sound mind when the will was executed, even if they weren’t always of sound mind.

An individual making a will in Fort Lauderdale or the surrounding areas need not necessarily understand all the legal details, implications and complications of their actions, but they do need to grasp the general issues.

We tend to see more of these types of disputes today than in years past for numerous reasons. These include:

• The increase of people living longer;
• The rise of the middle class post-WWII means more assets possessed by the aging population;
• The shift from a traditional nuclear family to an increasing commonality of multiple marriages and having children out-of-wedlock.

If the court deems a person was not able to understand these elements at the time the will was executed, it will be ruled unenforceable. At that point, the estate will go into probate, with the court choosing a personal representative and the estate divided among various heirs, including one’s surviving spouse and/ or descendants, parents, siblings or other relatives. If there is a surviving spouse and no descendants, the spouse receives the entire estate. Otherwise, spouses receive 50 percent.

Our probate litigation lawyers in Fort Lauderdale represent surviving spouses, children, creditors and others who may have rights to the estate. We can also help with the process of appointing a personal representative. Even in cases where there is no will or the will is deemed invalid, the matter will still need to be properly probated. We can help.

Contact the Probate Litigation Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.