What Steps Can Be Taken to Show A Decedent Had Testamentary Capacity – Lulich & Attorneys

What Steps Can Be Taken to Show A Decedent Had Testamentary Capacity – Lulich & Attorneys

Will contests can take place on several grounds. Contests occur because someone believes he or she should have gotten more.  Most wills provide for the spouse and the children. If a child is left out of a will, they are likely to seek Florida probate and estate counsel – to contest the will. A testamentary capacity challenge is one contest ground.
The general grounds for invalidating a will are these:

Undue influence

This ground is for when a person in a confidential relationship with the testator does more than just help the testator prepare a will. The ground also usually requires that the person in a confidential relationship receive more than he/she normally would have. Undue influence also normally requires a showing that the beneficiary excluded others who get a lesser or no share from meeting with the testator before death.

Fraud or Duress

If physical, financial, or other types of improper pressure were applied to induce the testator to change his/her normal distributions – the will can be held to be invalid

Improper Execution

In Florida, wills must clearly dispose of the property. They must have proper signatures and witnesses.


A testator can revoke the will he/she signed. Revocation includes either preparing a new will or preparing a codicil (amendment) to the will.

Lack of testamentary capacity

Florida requires that the person who drafted the will have the testamentary capacity – essentially the ability to understand basic fundamentals. Testamentary capacity does not require that the decedent have a high-school degree or any formal education. The testator, the person making the will, does not have to be under a certain age. On the other hand, persons with advanced Alzheimer’s or dementia generally lack the ability to have the required testamentary capacity.

The essential requirements to show lack of testamentary capacity

Florida’s probate courts will examine the following factors:

  • Could the testator understand the nature and consequences of preparing and executing a will?
  • Did the testator know the nature and extent of the property that will pass through the will?
  • Could the decedent appreciate who the natural objects of his bounty are such as the immediate members of the family and the beneficiaries in the will
  • Did the testator understand the type of relationship that existed between the testator and the beneficiary of the will?

It's also relevant to ask if the testator knows how all these understandings relate to each other.

Testamentary capacity factors

The issue of testamentary capacity is measured/determined at the time the will is executed. It does not help the person who is contesting or trying to invalidate the will that the testator became mentally unable to understand any of the four key testamentary questions – a day later, a month later, or years later. The key question for the court is was the testator lucid, of clear mind, when the will was executed.
Generally, the presumption is that the testator had testamentary capacity at the execution of the will. The burden is on the person contesting the will to prove a lack of testamentary capacity

Medical testimony and testamentary capacity

In many cases, medical testimony will show the patient had dementia, Alzheimer’s, a mental illness, psychological problems, or disabling problems. This testimony can verify that the testator did or did not have the basic four understandings.
Likewise, medical testimony can be used to show the testator did indeed understand the beneficiaries, the nature of his property, and the consequences for drafting and signing a will
The doctors who testify can vary. They may be gerontologists – doctors who specialize in care for senior citizens. Physicians may be nursing home doctors or family practice doctors. They can be psychiatrists. They may be neurosurgeons or other specialists.
In testamentary capacity hearings, both the executor and the person contesting the will may introduce medical evidence. The judge then decides which evidence is most credible.

Non-medical evidence

Witnesses, family members, coworkers, friends, companions, nursing home staff, relatives, and others can also testify as to the testator’s having or lacking testamentary capacity.

Some of the things a witness can testify to are the testators:

  • Ability to hold a conversation
  • Mood and demeanor
  • Whether the testator could write, converse, use a smartphone, or do anything to show a cognitive ability
  • Whether the testator made an explicit request?
  • Any specific reasons for making changes to a will such as the birth of a granddaughter

Additional factors that can help establish testamentary

One key factor that helps validate a will is that the testator met with a Florida wills and estate lawyer. Understanding the need and wisdom in seeing a lawyer helps to show the testator understands the seriousness of his/her duties and his/her desire to have the will prepared and executed correctly.
To verify a testator’s capacity, videos and taped conversations can help show that a testator had an active, alert mind and that he/she understands the basic issues – such as the nature and object of his/her bounty. For example, the testator could respond, on the question, that he/she has a home in West Palm Beach, that there are checking and savings account, a car by model and types, retirement benefits, and other assets.