By: Coleman P. Hengesbach, Esq.

Under Florida Law, granted a person is 18 years of age or an emancipated minor, they may only make a will if they are of “sound mind”.  But, what does “sound mind” really mean? This question has navigated its way through our court system. 

When challenging a will or trust on the grounds that the person did not have “sound mind” or lacked “testamentary capacity”, Courts will review the person’s mental capacity at the time he or she executed the will or trust. 

Florida Courts have defined “testamentary capacity” as (1) whether one generally understands the nature and extent of the property to be disposed of (2) the person’s relationship to those who would naturally benefit from the will or trust and (3) whether one can generally understand the practical effect of the will or trust executed. 

In more layman’s terms, these factors essentially test whether the person making the will or trust understands what assets they own, their relationship to the person they are essentially “cutting out” and whether they even understand the nature objects of their wishes. In cases involving a person with diminished capacity, they have no idea whether they own a house, how much it is worth, or how much money they have in their bank accounts. They do not truly understand that by adding a distant relative or friend in place of their daughter disinherits their child. The most obvious cases involving diminished capacity include a person with Alzheimer’s or Dementia. 

Unfortunately, countless wills, trusts and/or amendments thereto are executed on a daily basis, leaving loved ones left with nothing. Many people, particularly the sick and elderly, are taken advantage of at a time when they lack the mental capacity to make important decisions such as executing a will or trust. If you believe you were damaged as a result of a will or trust that was executed at the time the person lacked mental capacity, contact an experienced probate and trust litigation attorney. 

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