Call us Today at (954) 458-8655

Florida will contests based upon lack of testamentary capacity are often emotionally difficult as the “sound mind” of a loved one must be challenged in a formal court proceeding.


The Florida Legislature provides the following law as a guide for everyone who is making a Last Will and Testament here in the State of Florida; according to Florida Statute 732.501:

Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

Sounds simple enough, but the legal phrase “sound mind” has created lots and lots of conflict regarding whether or not a document can be given the legal respect as a Last Will and Testament here in Florida. Countless lawsuits have been filed in Florida probate courts on this issue; there are many issues to consider when reviewing the circumstances surrounding the preparation and signing of a Will to determine whether or not “sound mind” and “testamentary capacity” existed.

Testamentary Capacity in Florida

As explained by the Florida appeals court for the Second District of Florida in the case of In re Bailey’s Estate:

Whether one has testamentary capacity is a question determinable only by mental capacity of the testator at the time he executed his will. The making of a will does not depend upon a sound body but upon a sound mind.   The term, “sound mind”, means the ability of the testator “to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.”   In re Wilmott’s Estate, Fla. 1953, 66 So.2d 465, 467, 40 A.L.R.2d 1399; Newman v. Smith, 1919, 77 Fla. 633, 82 So. 236, 241; Hamilton v. Morgan, 1927, 93 Fla. 311, 112 So. 80; and Neal v. Harrington, 1947, 159 Fla. 381, 31 So.2d 391.

The person can be very sick and even close to death at the time he or she signs a Will and this does not, in and of itself, mean that the person lacks a sound mind. As explained in In re Wilmott’s Estate:

A sick person may make a valid will in his last illness or even when in a dying condition. “And, unless the surrounding circumstances are such as to show that not only was the testator afflicted with an impairment of his senses, such as would ordinarily be occasioned by diseases * * * but is, by reason of the effect of disease on his mind, also unable to comprehend and understand the nature of the undertaking in which he is engaged when he attempts to make his will, it cannot be said as a matter of law that testamentary capacity is shown to be so lacking as to render a will made during one’s affliction and last illness invalid for want of sufficient testamentary capacity. If the testamentary requisites are found, the will may be valid, although executed by one of great age, whose mind is enfeebled, whose body is debilitated, whose memory is failing or whose judgment is vacillating, especially where the will appears to have been fairly made, is not an unnatural one, and apparently was made under conditions not inconsistent with the inference that it emanated from a free mind.” Smith v. Clements, 114 Fla. 614, 154 So. 520.

Evidence to Show Testamentary Capacity to Make a Florida Will

In Florida, a “sound mind” and “testamentary capacity” must exist before someone can make a valid will disposing of their property under Florida law. Here, the person, among other things, has to have an understanding of what they own and what they want to do with that property – how they want to dispose of it, and which people should receive specific items when they die. The testator (man) or testatrix (woman) needs to know and be competent as to these general issues when they are making their Will, but they don’t have to know all of the legal details and complications involved in doing it.

For those that read the person’s Last Will and Testament after the person has passed away, there may be concerns that the document does not accurately reflect the decedent’s wishes — and there may be a suspicion that the person did not have the necessary understanding (or capacity) at the time that they signed the document.   They do not believe that the Will that is being presented for probate, and used to distribute the decedent’s property, is accurate, and that by relying upon its provisions will not result in the true and honest wishes of the person who has passed away will be respected.

This means that the questioned Will must be challenged.  This entails a formal filing in the Florida probate court as a Will Contest.  It is a lawsuit filed against the Estate of the decedent, where the document becomes an issue to be decided by the Florida probate court Judge.

Here, these concerns over “sound mind” and “testamentary capacity” must be made formally before a Florida Probate Court in formal pleadings, where evidence will be heard in open court proceedings.

For those seeking to establish that the Will lacks testamentary capacity, the burden becomes one of providing evidence that it is more probable that not that the person lacked a “sound mind” at the time that the will was signed.  During this formal lawsuit, and after some procedural steps are followed, experts and lawyers (who use discovery methods like interrogatories, depositions, and the like) and the judge are legally required to presume the Will is valid, leaving the challenger to bring forward evidence to support their claim of a lack of testamentary capacity.

From Hendershaw v. Estate of Hendershaw:

The burden of invalidating a will because of lack of testamentary capacity is a heavy one and must be sustained by a preponderance of the evidence. Estate of Bailey, 122 So.2d 243, 245 (Fla. 2d DCA 1960); see also In re Donnelly’s Estate, 137 Fla. 459, 188 So. 108 (1938)(It is well established that a last will and testament shall be held valid whenever possible).

Testamentary capacity is determined only by the testator’s mental capacity at the time he executed his will. Estate of Bailey, 122 So.2d at 245. “`[S]ound mind’ means the ability of the testator `to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.'” Id. (citations omitted).

The probate court’s findings in a will contest shall not be overturned where there is substantial competent evidence to support those findings, unless the probate judge has misapprehended the evidence as a whole. Id. at 247; see also Estate of Parson, 416 So.2d 513 (Fla. 4th DCA 1982)(The findings of the trial court are to be presumed correct and are to be given the same weight as a jury verdict).

 The bottom line is that these cases can be complicated.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



If you found this information helpful, please share this article and bookmark it for your future reference.