Testamentary capacity refers to the legal status of the testator (the person who made the will) to capably create and execute a will. Will creation is the process of the decedent drafting on their own, or through the assistance of an attorney or other party a will to provide for the distribution of the decedent’s estate upon death. Will execution occurs when the final will is signed by the decedent and two witnesses who sign in the decedent’s presence. Testamentary capacity focuses on the mental capabilities of the decedent, and specifically that person’s ability to appreciate the consequences of engaging or not engaging in specific acts, as well as to understand any relevant facts surrounding the will and the estate. A challenge to testamentary capacity typical occurs when a relative, or other beneficiary/interested party to the will alleges that the decedent entered into a without understand the contents and the ramifications of an executed will.

The valid execution of a will requires only that the Miami testator have testamentary capacity, which means to have been of “sound mind” at the time that the will was executed. In order for the testator to be considered as having a sound mind they must have the capacity to mentally understand in a general manner (a) the testator’s relation to those persons who would naturally be beneficiaries to the estate (b) the extent and nature of estate property that would be disposed of via the will, and (c) a satisfactory understanding of the practical effects of the will’s execution.

Testamentary capacity is not negated by the testator’s frequent use of intoxicants such as drugs or alcohol. The Miami testator’s failing memory, enfeebled old mind, or vacillating judgment also does not negate testamentary capacity. One who exhibits odd behavior, or has even been found to be insane can still execute a valid will as long as such execution occurred while the testator was within a lucid interval. Ultimately, no matter the testator’s capacity before or after the execution of the will, such will is considered valid if testamentary capacity was present at the time of execution.

The need to determine testamentary capacity can arise in two different situations. A Miami estate attorney might find it necessary to conduct a testamentary capacity test before executing a will on behalf of a testator. The estate attorney’s testimony to the testator’s capacity could serve as proof in probate court of a lack or presence of testamentary capacity. Or If a will is challenged after the death of the decedent the probate court can conduct its own testamentary capacity review. Such review would examine evidence related to the testator’s mental well-being and general health in the time period leading up to will execution. If an interested party does not agree with a probate court’s finding of testamentary capacity, an appellate court may step in. However, this would only occur if substantial competent evidence did not exist to support the probate court’s findings. An appellate court may also interfere if it seems that the probate court misunderstood the potential effects of all relevant evidence.

The testamentary capacity standard simply requires that the testator possessed a sound mind at the time the will was executed. A review of testamentary capacity may be required either before or after the execution of the will.

If you are dealing with a testamentary capacity issue, call us at (786) 522-1411.