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Home > Blog > Estate Planning (Wills, Trusts, Deeds, Business Succession) > Dealing with Mental Capacity Issues in Florida Estate Planning

Dealing with Mental Capacity Issues in Florida Estate Planning

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In order to execute a valid last will and testament, someone has to have what’s known as mental capacity. If there is a question as to whether the will creator, known as the testator, was or was not competent at the time, the will could be challenged in probate. Mental capacity can encompass a number of different things, from an accident involving a brain injury to dementia. It can also involve something more temporary, like someone who is under the influence of illegal drugs at the time they executed their will.

Estate planning is a very serious topic and is not something that should be left to your later years. Even if you don’t think you have enough assets to warrant creating an estate plan now, sit down with a West Palm Beach estate planning attorney. You may find that there is already plenty an attorney can help you with.

Estate planning is not just about when you pass away. If you do become mentally incapacitated, there are important documents included in an estate plan, like a power of attorney and an advance directive. If something happens to you, planning ahead while you’re still able to can go a long way in ensuring your wishes are honored and your finances are taken care of.

Testamentary Capacity

In order to execute a valid will, the testator has to possess testamentary capacity. This means  the person must be at least 18 years old and be capable of understanding, in a general way, what his or her property is, what the plans are to distribute that property, and he or she must be able to relate all the elements together in order to form his or her own decision on how to distribute their property once they are deceased.

Someone who has been diagnosed with dementia is not going to possess the testamentary capacity in most cases. If he or she was just diagnosed with the early stages, he or she may still have capacity, but it’s almost a guarantee that someone will challenge the will when it’s offered for probate.

Testamentary capacity is the lowest level of capacity recognized, which means it can be determined on a case by case basis. If the testator understands all the elements of the will they are drafting, and has a set plan in place for the distribution of their assets, he or she is probably fine. If days later they do not remember drafting the will, it doesn’t necessarily have any bearing since the will was drafted and signed when he or she did have the minimum amount of required testamentary capacity.

Just stating that someone has dementia, or some type of mental illness, isn’t enough for a judge to agree that the person lacked capacity. The person challenging the will must present evidence to show that the person was not ok to execute the will. Since you must have two witnesses when executing a will, those people can corroborate the state of mind the testator was in the day the will was drafted.

Contact a West Palm Beach Estate Planning Attorney

If you need help getting your estate plan started, contact a West Palm Beach estate planning attorney at the Law Offices of Larry E. Bray, P.A. today to schedule an initial consultation.


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