How to Make a Legal Will in Florida

Attorney Will W. Sunter
Will focuses his practice on litigation with an emphasis on civil, real property and probate matters as well as guardianship.

For some people, getting older also means losing the sharpness of their memories and increasing general confusion. While this may appear to be part of the natural progression of life, it is also a common cause for concern when it comes to writing and executing a will.

Decreased Mental Capacity Leads to Increased Will Contests

Children, spouses, siblings or other beneficiaries see the inability to remember birthdays and the difficulty in managing a checkbook as diminished mental capacity. They then equate these deficiencies to their loved one’s inability to execute a will or other estate planning vehicle. This leads to will contests and other challenges in court.

In Florida, however, forgetting birthdays is not enough to prove decreased mental capacity.

Florida Law: What It Takes to Make a Will

In general, a person (“testator”) must be of “sound mind” to draft and execute a will. In 1918, the Florida Supreme Court defined sound mind as “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 of substantial benefit from the will, as well as a general understanding of the practical effect of the will executed.” Newman v. Smith, 82 So. 236 (Fla. 1918).

This is an incredibly low burden for a testator to meet. They merely have to know:

• What their assets are
• Who is benefiting from the will (descendants and others)
• That the document is a will and that it gives their assets to those people

Unless a court has found the testator incompetent, there is a presumption that the testator has the necessary capacity.

Proving Mental Capacity (or Incompetency)

If someone wishes to set aside a will, they have the burden to prove that the testator did not have the required testamentary capacity at the time of execution. This is true even if there are medical records stating the testator person is incapacitated, because the presumption that the testator has capacity stands.

The Supreme Court has gone so far as to allow a person to execute a will even if they have been declared legally incompetent by a court of law. The practical effect of this holding is that the person bringing forward the will must prove that the testator did have capacity at the time of execution.

For example, a person may be declared incompetent and lacking testamentary capacity on a Monday, have a lucid moment on Tuesday, and then return to incompetency on Wednesday. If that person executed a will on Tuesday, the will is valid. In cases such as this, however, the burden of proof of competency is on the incapacitated person to prove that testamentary capacity existed on Tuesday. This can become quite difficult to prove if the capacity challenge comes after the testator has passed away.

Avoid Questions of Capacity—Discuss Your Will with a Knowledgeable Lawyer

The proper execution of a will or other estate planning document is extremely important. Challenges can and will arise if execution is handled improperly or if there are questions of proper mental capacity.

If you are thinking of creating and signing estate planning documents or have questions regarding how the validity of a last will and testament affects you, seek the counsel of an experienced estate planning attorney. Do so especially if there are existing concerns regarding your current mental state or capacity for formalizing legal documents.

About Farr Law Firm

Because many estate planning issues overlap with other practice areas, our attorneys utilize a cross-team approach to address a client’s needs. Our estate planning attorneys collaborate with our asset protection, business, real estate, litigation, probate, and elder law attorneys. They also work closely with a client’s accountant, financial consultant, REALTOR®, appraiser, insurance agent, and other advisers.

This newsletter is for general information and education purposes only.
It is not offered as legal advice or legal opinion.
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