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Who determines whether a person is of sound mind or whether someone lacks capacity at the time documents are signed?
Florida attorney Reed Bloodworth said that “there is not just one person who determines whether a testator or grantor — the person who made the will or trust — had capacity or not.
“However, the person challenging a will or trust has to collect and provide admissible evidence to show that at the time the person signed the will, that they did not have capacity,” said Reed, Founder and CEO of Bloodworth Law.
“They will have to prove that during the moment when that person is actually putting a pen to paper that there was a lack of mental capacity.”
Just Because Someone Is Sick Does Not Mean They Lack Capacity
“Just because someone is very sick doesn’t mean they lack capacity,” Reed said. “There’s an older Florida court case that states: ‘even though the person executing the will may be elderly, their mind is enfeebled, their body is debilitated, their memory is failing, and whose judgment is vacillating, that a will can still be valid.
“‘As long as the will appears to be fairly made, is not unnatural, and, was made in conditions not inconsistent with the inference that came from that person’s free mind.'”
What Is A Properly Executed Will?
“The courts place high regard on a person’s properly executed will,” Reed said. “Meaning a testator signed it in the presence of two witnesses and it was notarized. There’s a presumption that it’s valid, and it’s up to the person challenging that will to prove it’s invalid.”
Diagnosed With Dementia or Alzheimer’s?
“In proving a lack of capacity, there are a number of things pursued through the discovery process of the case,” Reed said. “This begins with the testator’s — now decedent’s — medical records.
“Were they diagnosed with dementia or Alzheimer’s?
“How bad was the dementia or Alzheimer’s?
“How long ago were they diagnosed? Both dementia and Alzheimer’s are progressive diseases that don’t improve.”
Evidence Is Necessary
Reed said that other things that will be looked for in a Lack of Capacity case “are witness statements and depositions. Time will be spent finding people that were around a person whose capacity is challenged.
“These are all used as evidence that the person did not have capacity to understand what they were doing when they executed the will or trust being challenged,” Reed said. “Because when you create a will or trust, you need to understand what it is that you own, your belongings and your possessions, and what you’re doing with them and who you are giving them to.
“It’s not just a collection of medical records: It is never that clear cut. Because it all comes down to the moment the person actually signed the will or trust and the people that knew the true intent of the person signing the will or trust.”
Probate Or Trust Litigation Dispute?
If you have a probate or trust litigation dispute, talk to Reed about how Bloodworth Law can help you, your business, or your family.