How Do I Prove Capacity When Making a Will?
Full Question:
Answer:
A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery. If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent.
In Florida, "incapacitated" means a judicial determination that a person lacks the capacity to manage at least some of the person's property or to meet at least some of the person's essential health and safety requirements. To prove the person has capacity at the time of signning, a will may be videotaped. Typically, in such a taping, an attorney will ask questions and get responses from the testator to prove capacity. Medical evaluations are also used to prove capacity.
Please see the following FL statutes:
733.107 Burden of proof in contests; presumption of undue
influence. —
(1) In all proceedings contesting the validity of a will,
the burden shall be upon the proponent of the will to
establish prima facie its formal execution and attestation.
Thereafter, the contestant shall have the burden of
establishing the grounds on which the probate of the will is
opposed or revocation is sought.
(2) The presumption of undue influence implements public
policy against abuse of fiduciary or confidential
relationships and is therefore a presumption shifting the
burden of proof under ss. 90.301-90.304.
732.5165 Effect of fraud, duress, mistake, and undue
influence. —
A will is void if the execution is procured by fraud,
duress, mistake, or undue influence. Any part of the will is
void if so procured, but the remainder of the will not so
procured shall be valid if it is not invalid for other
reasons.
732.517 Penalty clause for contest. —
A provision in a will purporting to penalize any interested
person for contesting the will or instituting other
proceedings relating to the estate is unenforceable.
732.518 Will contests. —
An action to contest the validity of a will may not be
commenced before the death of the testator.