How do Probate Lawyers Know a Client Has Testamentary Capacity Before They Help Amend a Florida Estate Plan?

When do Florida residents lose testamentary capacity according to the Florida probate court? This is an important question for Florida probate lawyers. Is it malpractice if an estate attorney helps an incompetent client amend their estate plan? Check out this recent appeal centered attorney’s fees that raises many more issues.

Testamentary Capacity

• Do you know what testamentary capacity is?
• Testamentary capacity refers to the ability of a testator to make decisions.
• What is required for someone to have capacity in Florida?
• That is a question to discuss with your Florida probate attorney.
• Did you know that the capacity to enter into contracts or make decisions as decided by a guardianship lawsuit may be separate and distinct from testamentary capacity?
• Which one do Florida lawyers need to see in order to allow you to make or amend your trust?
• Check out this recent case out of California to learn more.
• How does this all apply to estate litigation in Florida?

Jong Strait v. McDonald

• This was an appeal from a September 2014 order.
• Do probate orders really take that long to appeal in Florida?
• Florida estate lawyers know that appeals take time.
• Here the issue was certain amendments that a decedent made to his trust after he had already been declared to have dementia.
• After he was diagnosed his children put him into a facility that specialized in dementia treatment but he was not too happy about that.
• So what did he do?
• He disinherited those children.
• Can you disinherit your children in Florida?
• Did you know that you are actually allowed to disinherit your kids in 49 states?
• Which state is the odd man out?
• The question then becomes did he have capacity to do that?
• Florida estate attorneys know this is not a novel question to be put before the Court.
• What do you think?

Want to learn more?

Check out the entire case by clicking here.

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