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Lack of Mental Capacity

Can you set aside a will or a trust in Florida if the person did not know what they were signing? Florida probate lawyers or estate litigators refer to this as the lack of mental capacity. One of the pinnacle Florida cases dealing with lack of mental capacity is In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953). There, the Florida Supreme Court explained that a testator could still make a valid will if in old age, sick, in their last illness, or even in a dying condition. Id. at 467. If the testamentary requirements are met, a will in these circumstances could still be deemed valid. Id. A determination on these issues, particularly as to whether the testator had testamentary capacity to execute the will on that date, is a determination to be made by the trial judge. Id. The Wilmott court stated that “[t]he making of a will does not depend upon a sound body but upon a sound mind.” Id. Rather, to have that sound mind, the testator must simply be able to understand in a general way their property and assets, their family members and/or those who would ordinarily receive that property and those assets, and how the will distributes that property and those assets.

It is up to the challenger of a will to prove at a probate lawsuit trial that the testator lacked mental capacity on the date of its execution. In these kinds of cases, lack of mental capacity is often proven by medical records and testimony of those who observed the decedent (the testator) around the time of the execution of the will. Many times, probate litigation law firms in Florida may hire a doctor to examine medical records and render a professional opinion on mental capacity or lack of capacity. This opinion may help the probate court judge determine if the Florida will is not valid, or if it is valid.

If a will is invalidated based on lack of mental capacity, then the distributions set out in that will are disregarded. Depending on the particular case, a prior will of a testator may be revived, or alternately, the testator’s estate would pass through the laws of intestacy.

Importantly, there are very short deadlines for bringing a will contest – if one has been served through formal notice of a petition seeking to admit a will to probate, one only has 20 days to respond and file a will contest. Alternately, if one receives a notice of administration of a will which has already been admitted to probate, one has 90 days to file the will contest.

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