How Do You Determine a Testator’s Competency in a Will?

Death is a terrifying reality that comes to every single one of us. However, what is truly terrifying is not knowing what will happen to your assets once you are gone, especially since no one ever knows when their time will come. As such, it is pivotal to have a prepared estate plan, which constitutes a will. 

What Documents Constitute Estate Planning?

Estate planning is the legal process of drafting the necessary documents which will govern the way your assets will be distributed upon your death. These documents also govern how you wish your medical and burial choices to be enforced. Some of these documents include, but are not limited to: a (1) will; a (2) trust; a (3) preneed guardianship declaration for minors and yourself; an (4) assignment of personal property; a (5) quitclaim deed for your real estate property; a (6) power of attorney; an (7) advanced directive; and a (8) designation of health care surrogate. 

These documents are complicated and have complex legal procedures and restrictions; it is recommended that you seek an attorney that will be able to help you draft these documents. 

What Is a Will?

A will is a legal document that expresses a person’s wishes as to how their property is to be distributed after their death and as to which person is to manage the property until its final distribution. The person who drafts a will is called a testator and those who receive assets from a will are referred to as beneficiaries. 

What Makes a Will Valid?

To make a valid will in Florida, a testator must be: (1) at least 18 years old or an emancipated minor; and (2) of sound mind. When drafting a will, you will need two witnesses present who must witness you signing the document, you must witness them signing the document, and the witnesses must be able to witness each other signing the document. Although it is not required, it is recommended that a will be notarized. 

For example, let’s say that Jimmy, 65 years old, wants to draft a will and goes to Attorney Tom, who is also a notary public, to help him draft it. Jimmy asks his best friend Stewie and his cousin Joe to be witnesses. Jimmy must sign in front of Stewie and Joe; Joe and Stewie must sign in front of each other and in front of Jimmy. 

How Does Florida Determine Competency?

People are generally considered competent to sign a will if they: (1) understand what a will is; (2) remember the type of property they own and how much they own; (3) remember who their descendants are; and (4) understand how their property will be distributed if no will is drafted.

For example, let’s say Jimmy from the last example understands what a will is because Tom told him in simple terms that a will allows Jimmy to properly distribute his assets to Jimmy’s children, Tommy and Ginna. Jimmy knows that he owns $500,000 in a Roth IRA and owns a house in Key West, which is his homestead. Jimmy understands that if he dies without a will, or intestate, his property will be distributed based on Florida’s intestate succession laws. However, Jimmy has Alzheimer’s and forgets that his third child, Mickey, who is alive and well in Boston, exists. Mickey, upon Jimmy’s death, can contest the will, arguing incompetency because Jimmy did not remember who his descendants are. Still, if in fact, Jimmy wanted to purposefully leave Mickey out of the will, Mickey will likely not prevail in his will contest. 

EPGD Business Law is located in beautiful Coral Gables. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Eric Gros-Dubois

Eric P. Gros-Dubois founded EPGD Business Law in 2013 and is the current head of the firm’s corporate, estate planning, and tax practice, and manages the firm’s Washington D.C. office. With a JD and MBA, and a specialization in finance, Eric is able to step back and view the legal world through a commercial lens while also acting as a trusted business advisor for his clients. He does his best to be solutions oriented, and tries to think like a business owner, not just a lawyer.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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