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Florida Wills: What is Testamentary Capacity?

In order to challenge a Florida will, it may be necessary to prove that the person making the will -- the testator -- lacked what is known as testamentary capacity. In other words, that the person making the will lacked the ability to understand the consequences the will at the time it was created.

Adults over the age of 18 are presumed to have testamentary capacity. Some of the ways to prove a lack of testamentary capacity include:

  • The testator was senile, suffering from dementia, had a substance abuse problem or was mentally ill at the time the will was drafted and signed.
  • The testator did not understand the value and extent of his or her property.
  • The testator does not have a close relationship with the beneficiaries of the will.
  • The testator does not understand what the provisions in the will mean.
  • The testator does not know the value of the property included in the will.

Additional challenges to the validity of a Florida will can include:

Undue influence, forgery or fraud. It is not uncommon for challenges to a will to charge that the will was procured by undue influence, forgery or fraud. This is especially true if the testator is elderly when the will is created.

Discovery of a newer will. If a newer will is discovered, it can trump an older will. If you are updating your will, it is important to state that it invalidates all previous wills and the old will should be destroyed.

Witnesses. Florida law requires that a will be signed in the presence of two independent witnesses who are not named in the will as beneficiaries. If a will lacks the necessary number of witnesses, or is witnessed by someone who stands to benefit from the provisions in the will, it may be found invalid.

The Dorcey Law Firm, PLC, provides effective estate planning strategies for all Florida residents. Contact our Fort Myers law firm for your free consultation.

Categories: Wills
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The Dorcey Law Firm, PLC - Fort Myers Attorney
Located at 10181 Six Mile Cypress Pkwy, Suite C, Fort Myers, FL 33966
Phone: (239) 330-6674
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