In creating and executing a will, particularly if you or your family members are older or have been subject to cognitive decline, it is important to know what capacity is required to be able to execute a valid will. This article will explore the nuances between diminished capacity and testamentary capacity, particularly as it relates to Florida law, and why they matter for your estate plan.
What is Diminished Capacity?
The term “diminished capacity” refers to a state where an individual’s mental functions are significantly impaired, but they may not necessarily be totally incapacitated. In the context of estate planning, diminished capacity refers to a client who can no longer handle their own affairs, be it financial or legal. Oftentimes, individuals with diminished capacity are more susceptible to being easily (and unduly) influenced by nefarious actors.
Because of this, most well-drafted Living Trusts, for example, may include a “diminished capacity” clause. This clause allows a successor trustee to take over management of the Trust’s assets while the Settlor (the person who created the trust) is still alive but can no longer properly manage its assets. Drafting a robust incapacity plan can help mitigate the risks of diminished capacity. Such plans usually include a durable power of attorney, which grants a trusted individual the power to manage financial, legal, and medical affairs on behalf of the individual with diminished capacity.
What is Testamentary Capacity?
While diminished capacity may invalidate a typical contract, a person with diminished capacity may still be able to properly execute or modify a will, given they have “testamentary capacity.” Most states typically have an age requirement (18 years old) and a mental capacity requirement, which requires a “sound mind” at the time of execution. To be of sound mind under Florida law, the testator must know what the purpose of the will is, what they own, what they want to do with their property, and to whom they want to leave their property.
If you haven’t noticed already, the standard for testamentary capacity is actually quite low. In fact, a person may lack the mental capacity for daily decision-making but nonetheless retain (even if momentary) lucidity, sufficient enough to validly execute a will. Notably, this kind of scenario often leads to will contests where lack of testamentary capacity and undue influence almost always appear together. This is because if a testator’s capacity is diminished, they are significantly more vulnerable to undue influence. Yet, for purposes of testamentary capacity, all the testator must understand at the time of the will’s execution—even if for a fleeting period—is the significance of creating the will, the extent of their property, and who their heirs are.
Testators Suffering From Cognitive Decline
A testator suffering from diminished capacity because of Alzheimer’s disease or another form of dementia may still have testamentary capacity during the disease’s early stages or during a “lucid interval” (or a period of clarity). This temporary period of clarity is typically sufficient to execute a valid will, given all other requirements are met.
These periods of clarity may be evidenced by the testator’s rational conversations with attorneys and an understanding of the testator’s assets and family structure. It’s critical for attorneys to gather evidence of testamentary capacity to mitigate the risk of a will contest. If an attorney believes a testator lacks testamentary capacity, they must not aid in drafting or executing the will. Attorneys may, however, implement safeguards such as capacity evaluations by physicians or video recordings of the execution to ensure capacity.
Probate and Will Challenges
Family members can challenge a will in probate, after the testator’s death, claiming lack of testamentary capacity. Once in probate, judges will examine the evidence of testamentary capacity using the factors discussed previously. If it’s proven that the testator lacked testamentary capacity and was not lucid during the time of execution, the will is declared invalid, and the assets will pass via intestacy or a prior valid will (if one exists).
Though there is a presumption of testamentary capacity, contestants may introduce evidence that the testator lacked the necessary mental capacity at the time of the will’s execution. This is often done through evidence of cognitive impairment, such as testimony from witnesses, lawyers, doctors, and psychologists, as well as medical records, which can be highly persuasive in establishing a lack of capacity. The closer in time the evidence is to the moment of execution, the more persuasive it becomes.
