Lack of Mental Capacity Litigation


Estate & Trust Contests: What is Lack of Testamentary Capacity?

One of the more common causes of action brought in estate litigation is a claim that a will or trust was executed when a loved one lacked the mental capacity to understand and sign the instrument. As we all know, as we get older, our mental acuity declines. For some of us, mental disease is a reality. We understand the impact Alzheimer’s and dementia can have on a person and how it impacts their estate plan. Our lawyers routinely handle estate and trust dispute lawsuits throughout Florida and litigate mental capacity issues in Will and Trust contests, and in guardianship disputes throughout Florida. One of the most common reasons for a trust to be improperly executed is through the undue influence of another person. Our are knowledge about undue influence and our law firm sues and defends undue influence claims.


Estate Litigation: Lack of Mental Capacity

A person creating a Will or Trust must be of sound mind.

In Florida, a testator cannot execute a will unless they are of “sound mind.” 

The statute provides that “[a]ny person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will. 732.501, Fla. Stat. (2015).

Florida Personal Representative Lawsuits

What is the legal standard in Florida for mental capacity to execute a Will or Trust?

The standard appears rather simple. Testamentary capacity is merely one’s ability to understand in general way nature and extent of property to be disposed of, his relation to those who would naturally claim substantial benefit from his will, and practical effect of his will as executed. In re Coles’ Estate, 205 So. 2d 554 (Fla. 2d DCA 1968).

Courts have created a test for determining capacity:

1. Did the testator comprehend the nature and extent of his/her property?

2. Could the testator identify the natural objects of his bounty?

3. Did the testator understand the purpose and effect of the will?

Additionally, it is important to know that capacity is determined at the moment the testator executed the will.


Florida has a presumption of mental capacity

Florida law has created a presumption that the testator had the necessary capacity to execute the will. Thus, a person challenging the will has the burden of proving that the testator lacked testamentary capacity.

Interestingly, there is a presumption of incapacity if the testator had already been adjudicated incompetent.

Lucid Intervals: an incompetent adult can execute an instrument during a lucid interval.

Many people are surprised to know that competency is only determined at the time the will is executed. Simply because a person has dementia, does not necessarily mean that they lacked testamentary capacity when the will was executed. Many people that suffer from mental impairments have “good days and bad days.” 

In Florida, a person who normally lacks testamentary capacity can execute a will during a “lucid interval.” A lucid interval may be applicable even when a person has been adjudicated by a court to lack mental capacity. 

A will or trust is invalid if executed during an insane delusion.

Even if a testator is normally of sound mind, a will may be invalid if the testator suffered from an insane delusion and the will was executed as a result of that delusion.

An insane delusion is a “spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.” McCabe v. Hanley, 886 So. 2d 1053, 1055 (Fla. 4th DCA 2004)

Estate Litigation: Common Misconceptions about Capacity

In Florida, abuse of drugs, alcohol, and illness is insufficient alone to find that a testator lacked mental capacity. With that said, if a testator was so drunk that he did not understand what he/she was signing, the will would be invalid as a matter of law. Age is not a factor, and the mere fact that a person is eccentric does not mean they lack testamentary capacity.

Practice Areas


Florida Trust Litigation

Our lawyers litigate disputes on behalf of beneficiaries, trustees, and other interested parties. He handles trust contests, trustee removal, and breach of trust actions. 

Florida Probate Litigation

Even the best estate planning can potentially spawn disagreements between beneficiaries, heirs, or other interested parties. We can assist in challenging an estate plan, defending a will contest, or lawsuits relating to personal representatives.

Fiduciary Litigation

We handle causes of action for breach of fiduciary duty relating to powers of attorney, caretakers, family members, trustees, and personal representatives.

Florida Securities Litigation

We have extensive experience in Florida representing customers against brokers, broker-dealers, investment advisors, and financial advisors.

Complex Commercial Litigation

We handle a broad range of business litigation matters including contract disputes, shareholder actions, and challenges to director or manager efforts.


We understand alternative methods of resolving disputes. Our firm has civil mediators and can help with mediating a variety of civil litigation matters.

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