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Published: Aug 14, 2022

Updated: Dec 8, 2023

Understanding Testamentary Capacity in Estate Planning

By Andrew David Easler, Esq.

Published: Aug 14, 2022

Updated: Dec 8, 2023

What is Capacity?

Capacity is the ability of someone to make rational decisions, and thus be accountable for their actions. Individuals with capacity are people with the power to make important life decisions in the eyes of the law; those with capacity are legally recognized as autonomous or semi-autonomous individuals.

The question of capacity is rooted in state of mind. As legal concepts, the standards for capacity are designed to protect those who are legally vulnerable as a result of some kind of mental infirmity. This infirmity could be temporary, such as alcohol intoxication, or permanent, such as irreparable damage to the brain. Testamentary capacity is the ability of someone, known as the “testator”, to make a will or other similar instrument that is legally valid and enforceable.[1]

Testamentary Instruments

Capacity in Wills

A will needs to be properly “executed” to be legally valid. In Florida, among other formalities, this means the testator must have the requisite capacity, and sign the will at the end, or if the testator is unable to sign, have the testator’s name subscribed at the end by someone in the testator’s presence and at the testator’s direction. This must occur in the physical presence of two witnesses, each of whom must understand its legal significance and attest to it by signing the will.[2]

First and foremost, however, the testator must have capacity. Without the requisite capacity, the execution will be moot and the will or other testamentary instrument invalid.

What Incapacity Means in a Will

Wills may be determined invalid for reasons of fraud, duress, mistake, or undue influence;[3] however, the reasonableness, or lack thereof, of a will’s terms is not sufficient to invalidate it, unless the issue of reasonableness specifically arises from fraud, undue influence, or lack of capacity.[4]

The standard for determining capacity, or “sound mind” as it is often cited, in a dispute over a will’s validity is that the testator understands, in a general sense, at the time the will is executed:

the nature and extent of the property subject to the will;
their relationship with the people who stand to gain from the contents of the will; and
the practical effects of the will they are creating.[5]

Determining whether this standard is met is an arduous challenge Florida courts have grappled with for over a hundred years.[6] A “sound mind” is the standard for capacity and not a sound body, but what about afflictions that affect both body and mind? The Florida Supreme Court in In re Wilmatt’s Estate found that drug addiction, though affecting both mind and body, does not necessarily compromise testamentary capacity.[7]

Likewise, an “insane delusion,” in the colloquial sense, does not necessarily compromise capacity.[8] Under Florida law, 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.[9] In other words, it may be a spontaneous belief which is untrue but believed despite evidence to the contrary. Beliefs which are simply “mistaken” but are irrelevant to the testamentary instrument, such as a will, do not alone make it invalid..[10] Even if it is established that a will’s contents are based on a mistaken belief, the will is still legally valid and enforceable.[11] Even a person who is diagnosed insane or a general insane condition can make a valid will, so long as it is proven that they executed during a moment of lucidity.[12]

Age related issues, like bad memory, also do not automatically compromise capacity.[13] So long as the standards of determining capacity are met, the testator has legal capacity, and their will is valid.[14]

Revocable Trusts

A trust is a legal entity that can control assets on someone else’s behalf. Trusts are often used as an alternative to the making a will; they streamline the process of distributing the testator’s property after death.

A revocable trust is a trust that can be changed at will by the trust’s creator (the “settlor”) during their lifetime. Since both wills and trusts are testamentary instruments, issues like capacity and undue influence are the same for trusts as they are for wills.[15] The exception is that, generally, the trust’s validity must be contested within six months of receiving notice of the trust’s existence.[16] The trust’s validity cannot be contested until after the testator dies or the trust becomes irrevocable unless commenced by the guardian of the property of an incapacitated settlor.[17] In such contests, the burden of proof is on the challenger.[18]

Legal Procedure for Contests of Capacity in Wills or Trusts

The process of contesting a will is laid out by law. Generally, a will’s validity can only be disputed after the testator has died.[19] A petition must be filed within three months of receiving notice that estate administration has commenced.[20]

The details of the petition and the subsequent process are laid out in the Florida Probate Rules.[21] Those wishing to contest the validity of a will may file a Petition for Revocation of Probate.[22] The petition must be filed before the personal representative, known as “executor” or “executrix” in many other jurisdictions, discharges their duty; however, will contests alleging fraud are not necessarily bound by this time period.[23]

In the proceedings that follow from this petition, the burden of proof is initially on the will’s proponent, the person who is alleging its validity, to show that the will was duly executed and attested. [24] This showing of proof can be accomplished using the similar methods used to overcome the presumption of undue influence: filing an affidavit or oath by a witness or witnesses. Then, the burden of proof shifts to the will’s challenger to prove their case for revocation of the will.[25]

Determining Capacity During Life

During the lifetime of a testator or other individual, her capacity can be challenged in court. A challenge to capacity is a court action that is initiated by filing a petition to determine incapacity.[26] The details of how this petition will be adjudicated are laid out in the Florida Statutes.[27] A committee will be appointed to oversee the examination of the allegedly incapacitated person.[28] The professionals joining the committee must be medical experts and at least one of them must have expertise in the alleged cause of incapacity to be adjudicated.[29] If a majority find the individual examined is not incapacitated, the petition will be dismissed.[30] Otherwise, the court will take the committee’s findings into account and rule on the issue.[31]

The evidence must be clear and convincing.[32] Testimony by a medical expert can be admitted like any other kind of evidence, but medical testimony that questions a testator’s capacity is not determinative.[33] The testimony of lay people who knew the testator, for example, can be given more weight by the court.[34]

If the court finds that the examinee is indeed incapacitated, certain rights previously belonging to that person will be delegated to an appointed guardian based on the level of incapacity.[35]

Capacity With Other Estate Planning Tools

Healthcare Surrogate

A healthcare surrogate is an individual designated to make health care decisions on behalf of another, receive information regarding the care of another, or both.[36] The surrogate is designated in a written statement signed by the principal and attested by two witnesses, neither of whom may be the would-be surrogate, and only one of whom may be a spouse or blood relative of the principal.[37]

Healthcare surrogates can also make decisions about the principal’s mental health treatment unless the principal explicitly designates someone else to make those decisions.[38]

Living Wills

A living will is a document that establishes instructions from the maker of the living will on what their desires are relating to life-prolonging procedures in events such as being incapacitated and in a permanent vegetative state.[39] The living will must be signed by the maker and be attested by two witnesses, one of whom cannot be a spouse or blood relative.[40]

Living wills become operative when the maker becomes incapacitated, which means they are physically or mentally unable to communicate their wishes regarding their health care.[41]

Power of Attorney

A power of attorney is the written grant of authority given by one individual to another to act in their name.[42]

A power of attorney may be suspended for the duration of any proceedings over the capacity of an individual.[43] If the court determines that the principal, the person who granted authority under a power of attorney, lacks capacity the power of attorney will be terminated unless it is a durable power of attorney—one that survives the incapacity of the principal.[44]

Guardianship and Declaration of Pre-need Guardianship

Petitions to determine an individual’s capacity are also often filed alongside a petition calling for the appointment of a legal guardian when or if the court determines the individual lacks capacity.[45] This legal guardian would take over some of the rights, but not necessarily all, held by the ward.[46][47] The guardian can either exercise all of the ward’s delegable rights or only those assigned to the guardian by the court.[48]

A declaration of preneed guardianship is a designation that can be made by an individual when she has legal capacity.[49]A written declaration can be filed with the court designating an individual who will act as the declarant’s guardian if that declarant is ever deemed legally incapacitated.[50]If and when that incapacity is determined, the preneed guardian will have a presumption of entitlement to be appointed by the court.[51]That presumption can only be overcome with substantial, competent evidence.[52]

Voluntary Guardianship

An individual can elect to designate a trusted individual to become their guardian voluntarily and prior to an adjudication of incapacity.[53]This is carried out by filing a petition for voluntary guardianship.[54]

Voluntary guardianships are designed for individuals who are mentally competent but believe themselves incapable of administering their estate.[55] The would-be ward must lay out in the petition the extent to which their guardian will exercise control over their estate.[56]The petition must include a certification by a licensed physician that the petitioner is“. . . competent to understand the nature of the guardianship and his or her delegation of authority.”[57] Essentially, the law asks the doctor to certify whether the future ward has a good grasp of what they are giving away when they elect to have a guardian appointed.

Voluntary guardianships are notable because they require that the petitioner be less than physically capable of administering their estate, but mentally capable enough to initiate the legal proceedings necessary to have the guardianship created.[58] The relationship in Florida between a guardian and a voluntary ward has been interpreted to be based more on collaboration rather than dependency.[59]

External Factors

Capacity vs. Undue Influence

Undue influence is the “over-persuasion, duress, force, coercion, or artful or fraudulent contrivance[s]” that undermines the testator’s agency.[60]

While capacity is a pre-requisite to make a testamentary instrument and the absence of capacity will make it invalid, capacity is also a pre-requisite to establishing undue influence. In other words, being unduly influenced necessarily means the testator otherwise has the capacity to make a will, but as a result of some external influence, he couldn’t exercise his true desires for his estate.[61]

In Florida, some relationships legally justify a presumption of undue influence.[62] The “confidential relationship” presumption was described in the Florida Supreme Court case, In re Carpenter’s Estate

Undue influence is presumed if it is established that the testator had a confidential relationship with one of the beneficiaries of the will and that beneficiary was also active in procuring the will.[64]

“Confidential relationship” means the testator’s relationship with the named beneficiary was generally kept secret from testator’s family and friends. Another relationship that gives rise to the presumption of undue influence is a “fiduciary” relationship between the testator and a named beneficiary.[65] Fiduciary is a person who is put into a position of trust, such as a caregiver and patient or attorney and client.[66]

The element of “active procurement” required to establish the presumption of undue influence can be shown by establishing the beneficiary’s direct or indirect involvement with establishing the will, such as the beneficiary’s presence at the will’s execution or the beneficiary’s role in retaining and instructing the testator’s attorney.[67]

Importantly, overcoming thepresumption of undue influence does not prove the lack of undue influence.[68] The facts which give rise to the presumption of undue influence are themselves evidence of undue influence and so defeating the presumption does not defeat the accusation.[69]

Other factors that may qualify as evidence of undue influence include: any inequality of mental ability between the testator and the other person,[70] the character of the transaction, the physical and mental condition of the testator, and any interests or motives the alleged influencer may have had.[71]

This evidence, however, only becomes relevant after the existence of a confidential relationship has been established.[72] By the same token, the existence of a confidential relationship does not, in and of itself, prove undue influence.[73] When the presumption is defeated, the court rules on the issue based on the preponderance of the evidence, rather than giving the challenger the presumption of undue influence which must be rebutted.[74]

Intoxication

While drug addiction alone does not compromise capacity in and of itself, alcoholism alone does not automatically compromise capacity.[75] However, being intoxicated at the time of the execution of a will does compromise capacity.[76] The Florida Supreme Court has held that “[i]t is essential to the validity of a gift that the donor shall have sufficient mental capacity to make a gift; a gift by a donor mentally incompetent is void.”[77]

Age

Individuals under the age of eighteen are generally presumed to lack capacity. For instance, when a legal adult has a petition filed for guardianship, there is a set procedure designed to confirm the alleged incapacity to ensure the adult’s rights are not stolen from them. Minors do not have the same procedural protections. A minor who has a guardianship petition filed does not need a medical examination or a hearing to determine incapacity.[78] Minors who are seventeen and a half years old do, however, gain the benefit of these safeguards.[79]

Safeguards

There are several provisions in place to protect against the rights of a testator being usurped by a potential beneficiary. The standards and court procedures for determining incapacity and the involvement of the examining committee are a few of these safeguards. In addition, if there is ever a legal dispute between a guardian and her ward, the ward will have a guardian ad litem appointed to represent her in the proceedings, not the guardian.[80]

Wards retain certain rights, including the right to have their wardship reviewed by a court.[81] The right to counsel is also retained by the ward.[82]

Finally, there is a legal process in place for an adjudicated incapacitated person to have her capacity restored.[83] The ward, or any other interested person, may file a suggestion of capacity with the court, arguing the ward can exercise some or all of the rights presently delegated to the guardian.[84] A physician will be appointed to examine the ward and file a report with the court.[85] If no one objects to the suggestion of capacity, and if the doctor reports back favorably, the court may restore the ward’s capacity.[86] If objections are filed or the physician’s report tends to advise against restoration, the court will hold a hearing on the matter.[87] The burden of proof is on the ward to prove that they have capacity.[88]

Key Takeaways

While there are methods in place through the courts to assist the family and friends of an individual who has lost capacity, there are affordable strategies and tools that can be implemented before capacity is lost to prevent later disputes, outline the testator or maker’s desires, and save time and money expended through legal proceedings. Establishing a full estate plan while competent is generally the simplest and most cost-effective means of planning for future incapacity and ensuring the defensibility of other testamentary instruments.

[1]Mulford v. Central Farmers Trust Co., 126 So. 762 (Fla. 1930). [2] Fla. Stat. § 732.502 (2022).[3] Fla. Stat. § 732.5165 (2022). [4]In re Tobias' Estate, 192 So. 2d 83 (1966)[5] Newman v. Smith, 82 So. 236, 238 (Fla. 1918). [6] See, e.g., Newman, 82 So. 236, see also, In re Witt’s Estate, 139 So.2d 904 (Fla. 2d DCA 1962). [7] In re Wilmott's Estate, 66 So.2d 465, 468 (Fla. 1953) (citing Fernstrom v. Taylor, 107 Fla. 490 (Fla. 1933)). [8] McCabe v. Hanley, 886 So.2d 1053 (Fla. 4th DCA 2004). [9] Id. at 1055. [10] York v. Smith, 385 So.2d 1110, 1111 (Fla. 1st DCA 1980) (citing Forsythe v. Spielberger, 86 So.2d 427 (Fla. 1956); 1 Page on Wills, Sec. 13.11 (Bowe-Parker ed. 1960)). [11] In re Supplee's Est., 247 So.2d 488, 491 (Fla. 2d DCA 1971) (finding that “it is not the truth or falsity of the ‘belief’ but, instead, whether or not such belief arose from reasoning from a known premise.”), certiorari denied. [12] Chapman v. Campbell, App. 2 Dist., 119 So.2d 61, 64 (1960) (finding that “where testator's sanity is questioned and inquisition establishes insanity or general insane condition prior to execution of will, one claiming under will must prove either that will was actually executed during lucid interval, or that at time of its execution testator's sanity had been restored”). [13] In re Dunson's Estate, 141 So.2d 601, 604 (Fla. 2d DCA 1962) (finding that “[m]ere old age, physical frailty, sickness, failing memory, or vacillating judgment are not inconsistent with testamentary capacity if the testamentary prerequisites were possessed by the testator”). [14] Id. [15] Fla. Stat. §736.0601 (2022). [16] Fla. Stat. §736.0604 (2022). [17] Fla. Stat. §736.0207(2) (2022). [18] Fla. Stat. §736.0207(1) (2022). [19] Fla. Stat. §732.518 (2022). [20] Fla. Stat. §733.212(3) (2022). [21] Fla. Prob. R. 5.550 (2022). [22] Fla. Prob. R. 5.270 (2022). [23] Dean v. Bentley, 848 So.2d 487,489 (Fla. 5th DCA 2003) (finding that “[a]lthough sections 733.208 and 733.109, Florida Statutes, provide that a petition for revocation of probate should be filed before discharge, fraud is recognized as justification for reopening an estate, even after an order for discharge has been entered” citing Liechty v. Hall, 687 So.2d 64, 65 (Fla. 5th DCA 1997); Padgett v. Padgett's Estate, 318 So.2d 484, 485 (Fla. 1st DCA 1975). [24] Fla. Prob. R. 5.275 (2022). [25] Fla. Stat. §733.107(1) (2022); see also, Fla. Prob. R. 5.275. [26] Fla. Stat. § 744.3201 (2022). [27] Id. [28] Fla. Stat. § 744.331 (2022). [29] Id. [30] Id. [31] Id. [32] Id. [33] Fla. Stat. § 744.331. [34] In re Hammermann's Estate, 387 So.2d 409, 411 (Fla. 4th DCA 1980) (finding that, in that case, “. . . the lay testimony was competent evidence of the testator's testamentary capacity . . . and that the trial court was not obliged to reject that evidence in light of medical testimony to the contrary”). [35] Fla. Stat. §744.3215 (2022) [36] See, generally, 12 Fla. Prac., Estate Planning § 4:42 (2022). [37] See, Fla. Stat. § 765.202 (2022). [38] Id. [39] See, Fla. Stat. § 765.302 (2022). [40] Id. [41] See, Fla. Stat. § 765.101(10) (2022). [42] See, Fla. Stat. § 709.2102(9) (2022). [43] Fla. Stat. § 709.2109(3) (2022). [44] Fla. Stat. § 709.2109(1)(b) (2022). [45] Fla. Stat. § 744.3201(3) (2022). [46] “Ward” is the person who receives the guardian appointed by the court. [47] Fla. Stat. § 744.3215(3) (2022). [48] Fla. Stat. § 744.102(9) (2022). [49] Fla. Stat. § 744.3045 (2022). [50] Id. [51] Id. [52] Martinez v. Guardianship of Smith, 159 So.3d 394 (Fla. 4th DCA 2015). [53] See, Fla. Stat. §744.341 (2022) [54] Id. [55] Id. [56] Id. [57] Fla. Stat. §744.341 (2022) [58] See, e.g., Bryan v. Century Nat. Bank, 498 So.2d 868, 870 (Fla. 1986). [59] Id. at 871. [60] Dunson, 141 So.2d at 601. [61] See, Bartsch v. Wirth's Estate, 136 So.2d 648 (Fla. 3d DCA 1962), certiorari denied. [62] See, Fla. Stat. § 733.107 (2022). [63] In re Carpenter's Estate, 253 So. 2d 697, 701 (Fla. 1971) (finding that “[i]t is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises”). [64] Id.; see also, Allen v. Dutton's Estate, 394 So.2d 132 (Fla. 5th DCA 1980), review denied. [65] See, Allen, 394 So.2d at 134. [66] Allen, 387 So.2d 535 [67] See, Carpenter, 253 So.2d at 697. [68] See, Ahlman v. Wolf, 483 So.2d 889 (Fla. 3d DCA 1986). [69] See, Carpenter, 253 So. 2d at 697. [70] See, Hack v. Estate of Helling, 811 So.2d 822 (Fla. 5th DCA 2002). [71] See, Gardiner v. Goertner, 149 So. 186 (Fla. 1932). [72] Cripe, 422 So.2d at 820. [73] Sturm v. Gibson, 185 So.2d 732 (Fla. 2d DCA 1966). [74] Cripe, 422 So.2d at 820. [75] Fernstrom v. Taylor, 145 So. 208 (Fla. 1933); see also, Saliba v. James, 196 So. 832, 835 (1940) (finding that “[a]n habitual drunkard is presumed competent when sober to make a gift unless it appears that the use of intoxicants has impaired his mental faculties”). [76] Saliba, 196 So. at 835. [77] Id. [78] Fla. Stat. § 744.342 (2022). [79] Fla. Stat. § 744.3021(4) (2022). [80] Fla. Stat. § 744.391 (2022). [81] Fla. Stat. § 744.3215(1)(a), (b), and (c) (2022). [82] Fla. Stat. § 744.3215(1)(l) (2022). [83] See, Fla. Stat. § 744.464 (2022). [84] Id. [85] Id. [86] Id. [87] Id. [88] Fla. Stat. § 744.464 (2022).

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