What is lack of testamentary capacity?

by | Feb 17, 2021 | Probate Process

When someone passes away in Florida, probate usually follows when the individual left a will. Probate proceedings might not always move along without problems, as interested parties and those with standing could pose a challenge. Grounds for contesting a will are somewhat limited, but serious questions about a lack of testamentary capacity could move the court. A judge could rule the document is not valid.

Issues of testamentary capacity

Words commonly found in a will include the testator writing his/her name followed by the phrase “being of sound mind.” These words are not flippant nor cursory, as they refer to this testator’s self-statement that he or she has the mental capacity to understand what the will represents. The individual must also realize the purpose of a will and know what parties receive assets during probate. The testator does need a clear understanding of the size, scope, and value of the estate, among other things.

A will written by someone not lacking mental capacity could include directions that an heir may find objectionable. The heir might believe the testator would not craft such directives if he/she sincerely possess the testamentary capacity. So, a challenge might follow.

Legal concerns about the testator’s capacity

Persons who attempt to write a will without an attorney’s assistance might find the will lack any validity. For example, a minor does not have “testamentary capacity,” so a will written by a 15-year-old would be invalid. An attorney could advise against making such an error.

Persons who use DIY wills templates and notarize the documents won’t eliminate the ability to use an attorney as a witness during any challenges. The attorney could testify the person did possess the appropriate testamentary capacity when he/she wrote and signed the will.

Also, the diagnosis of a condition that affects cognition might not be enough to prove a lack of capacity. A person could still maintain appropriate testamentary capacity even when ill.

Challenges to probate estate proceedings could involve many complicated issues, with a lack of testamentary capacity being among them. An attorney could assist those challenging or defending a will. An attorney may help with writing a proper will initially.


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