Lack of Capacity

Lack of Capacity When Executing a Will or Trust

Physical copy of a Florida Last Will and Testament that's crossed off in black marker to symbolize dying without a will which leads to intestate succession

Under Florida law, both a will and a trust are deemed legal and valid when created by an adult of sound mind. For a will, it needs to be signed by the testator in the presence of two witnesses. Florida courts have the authority to invalidate either a will or a trust under specific circumstances, including instances where the creator lacked testamentary capacity or soundness of mind.

Lack of capacity is among the primary reasons an interested party, like an heir or beneficiary, might contest either a will or a trust. However, proving such a lack is often difficult. The mere presence of a mental disease or illness, including dementia, doesn’t automatically suggest that someone is without testamentary capacity.

The estate litigation lawyers at Di Pietro Partners are AV Preeminent® rated trial attorneys with decades of experience representing trustees, beneficiaries, and other parties involved in trust litigation lawsuits & cases involving contested wills.

What Is Testamentary Capacity?

Testamentary capacity refers to a person’s mental competence to create or alter a will.

Florida Probate Statute Section 732.501 defines testamentary capacity as,

“Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.”

In other words, in order to possess testamentary capacity, a person must:

  • Understand the significance of creating a will and the consequences that follow its execution.
  • Recognize the extent and nature of their assets and property.
  • Be aware of the individuals who stand to inherit their assets, understanding the relationships
    they have these potential beneficiaries.
  • Comprehend the provisions in their will regarding how their property will be distributed.

It’s important to note that conditions such as old age, illness, or even Alzheimer’s disease don’t automatically imply a lack of testamentary capacity. An individual with conditions like mild to moderate dementia, or those who experience moments of clarity, can still potentially be deemed to have the mental competence necessary to draft a will. That said, if someone with dementia fails to recall the beneficiaries named in their will or the nature of their relationship with them, they are typically viewed as lacking the required testamentary capacity.

Examples of Lack of Capacity

Examples of situations that might indicate a lack of capacity when executing a will or trust include:

Dementia or Alzheimer’s Disease: An individual might not understand the nature of the assets they own or who their family members and beneficiaries are.

Intoxication: Being under the influence of drugs or alcohol can impair judgment and understanding.

Mental Disorders: Certain mental disorders might prevent someone from understanding the full implications of their actions or the nature of their assets.

Undue Influence: If a person is being coerced or influenced heavily by someone else, they might not be acting of their own free will.

Temporary Confusion or Delirium: Illnesses, high fever, or certain medications can cause temporary states of confusion or delirium.

Misunderstanding the Document: The individual does not understand what a will or trust is, the extent of the assets they are disposing of, or the beneficiaries they are naming.

Memory Issues: The individual cannot recall the nature and extent of their property or the identities of their close family members and loved ones.

Insane Delusions: If a person has a fixed false belief without any basis in reality, it might lead them to make decisions they wouldn’t ordinarily make.

Manipulation: Someone is misled or provided with false information which causes them to execute a will or trust in a way they wouldn’t have if they had accurate information.

Physical Duress or Threats: Being under physical threat or duress when executing a document can indicate a lack of genuine capacity.

When Can You Challenge a Will?

Undue Influence: This pertains to third parties manipulating someone to change a will to their advantage. Successful challenges require showing substantial benefit under the will, a confidential relationship with the decedent, and active involvement in shaping the will.

Lack of Capacity: A will requires the drafter to fully understand its implications. Challenges can arise from mental conditions like Alzheimer’s, dementia, brain injuries, intoxication, and more.

Validity Concerns: One major ground for challenging a will is its validity. Questions can arise regarding the drafter’s competency, the presence of subsequent documents, or possible undue influence exerted over the decedent.

Beneficiary Removal: Improper removal of a beneficiary, especially due to manipulation of vulnerable individuals, is grounds for dispute.

Insane Delusion: Defined by Florida’s Supreme Court as a “fixed false belief without foundation in reality”, this can render a will invalid.

Duress: Threats against the testator leading to will modifications invalidate the document.

Estate Fraud: Misrepresentations or lies leading to will changes can be challenged. This includes not informing the testator they’re signing a will, misleading them about its necessity, or misrepresenting its contents.

Forgery: Any fraudulently signed document is considered invalid.

Improper Execution: A will that isn’t correctly signed, drafted, or witnessed can be contested. Florida law stipulates specific requirements, such as proper testator signature and the presence of two witnesses.

When Can You Challenge a Trust?

Undue Influence: Challenges arise when a settlor (trust creator) is believed to have been coerced by a third party, often a family member in a position of trust, to modify the trust for their personal gain.

Lack of Capacity: If a trust was established by someone potentially not of sound mind, such as due to age-related illnesses like Alzheimer’s, it can be disputed. Other capacity influencers include:

  • Medication effects
  • Brain damage
  • Illnesses impacting mental clarity

In Florida, a trust’s validity is assessed by “testamentary capacity”. Trusts formed outside this standard can be legally challenged.

Issues with the Trust: The Florida Trust Code, specifically Section 736.0403, outlines the proper execution of a trust. Deviations can lead to litigation.

Trustee Discrepancies: Misconduct or violations by a trustee can instigate trust litigation. Concerns include:

  • Trust alterations
  • Self-dealing
  • Unauthorized trustee removal
  • Overcompensation
  • Improper or delayed distributions
  • Trust mismanagement
  • Breach of Fiduciary Duty

Breach of Fiduciary Duty: Trustees in Florida have specific obligations under Section 736.0813 of the Florida Trust Code. Breaches, like self-dealing, excessive compensation, imprudent investments, or theft, can lead to trustee removal.

Ambiguous Language: Trusts with unclear or deliberately confusing terms can be disputed. This often stems from attempts to unfairly benefit a specific party.

Florida Law Firm for Lack of Capacity

Facing challenges with trusts or concerns over the lack of capacity in Florida? Let the legal team at Di Pietro Partners guide you.

With over a decade in probate and trust litigation, David Di Pietro’s expertise spans estate administration, contested wills, trust disputes, and more. His nationally recognized insights, including commentary on the Brittany Spears conservatorship case, coupled with an impressive record of over fifty jury trials, sets him apart.

The team at Di Pietro Partners is composed of elite attorneys, hand-selected for their superior legal experience. Don’t navigate the intricacies of Florida law alone; choose the best. Choose Di Pietro Partners.