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Law Offices of Larry E. Bray, P.A. Larry E. Bray, P.A
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Understanding Mental Incapacity When Drafting Estate Documents


One way that many wills and estate plans are often challenged, are through the allegations that whomever drafted the estate plan or amendments to it, lacked the mental capacity to do so. People must be mentally competent to make changes to a will or estate plan, or to draft estate documents in the first place. When they aren’t there are grounds to contest the will in the probate court.

Physical and Mental Incapacity

Physical incapacity doesn’t tell us the whole story about whether someone is competent to draft a will or not.

If someone is, for example, in a vegetative coma, they may both be physically and mentally incapable of making or approving of estate documents. But physical incapacity on its own doesn’t automatically mean mental incapacity. Someone who may be a quadriplegic may be physically challenged, but may have full mental capacity to appreciate the ramifications of creating or altering estate documents. You could not challenge a will or estate, solely on the grounds that the deceased was a quadriplegic.

Even traditional diseases that we consider to be mentally debilitating, may not always equate to a total lack of mental capacity.

For example, “dementia” is a term that is thrown about almost haphazardly, yet we know that someone with dementia may be totally incapable of knowing what is going on, but someone with dementia may also just be a bit forgetful, and thus, may still be able to appreciate the consequences of making or altering an estate document.

The same is true of learning disabilities; simply having one is not determinative as to whether that person understands the nature and consequences of his or her actions when it comes to making an estate plan.

What Probate Law Says

This is all why the Probate Code doesn’t just allow a challenger to a will to say that the deceased had an impairment, illness or disease. Rather, the deceased must not have understood the nature of their property, and understand how their property will be distributed under the estate documents, in order to have grounds to challenge the will.

The person who made the will must have been “of sound mind,” and although there are no legal definitions for this term, experts, family, or those who interacted with the deceased, will often testify as to the deceased’s mental condition.

There are also tests called testamentary capacity instruments, that can be given to the deceased (while he or she is still alive, of course), that can measure how vulnerable someone may be to influence or coercion.

Getting a Guardian

If you have a living relative that you feel is really incapable of making decisions on his or her own, the best thing is to look into having a guardian appointed for him or her. Once the guardian is appointed, you minimize the risk of your relative being coerced, or of the relative making alterations to estate plans, that he or she doesn’t understand.

Do you have grounds to challenge a will or an estate? We can help. Call a West Palm Beach estate planning lawyer at The Law Offices of Larry E. Bray today.


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To speak to an experienced West Palm Beach attorney about your legal concerns, contact us at the Law Offices of Larry E. Bray for an initial consultation.

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