Blog

A Lucid Moment in an Orlando or Lake Mary, Florida Will Contest

The substantive evidentiary burden for testamentary capacity at trial is significant for invalidating a will because the burden of invalidating a will is due to a lack of testamentary capacity. This is a heavy burden. 

Florida courts recognize a presumption of testamentary capacity. Further, to execute a valid will, the testator need only have testamentary capacity (i.e. be of sound mind) which has been described as having the ability to understand in a general way mentally (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from the will, and (3) a general understanding of the practical effect of the will as executed. 

Florida also recognizes that individuals with issues of mental capacity often experience lucid moments. Indeed, it is only critical that the testator possess testamentary capacity at the time of the execution of the will. Testamentary capacity is determined only by the testator’s mental capacity when he executes the will. Even where a person has been declared legally incompetent, his will may be recognized when evidence demonstrates that the will was executed during a lucid moment. 

Courts have addressed the subject that people with mental health issues often experience periods of lucidity. The mere possibility that the testator was not lucid at the time of signing the will, however, does not satisfy the heavy burden of overcoming the presumption of testamentary capacity at trial. 

To prove a lucid moment, the person at trial would want to show that the testator had testamentary capacity. This would be done by calling the attorney who drew up and dealt with the client while preparing and signing the will; along with the witnesses to the testator executing the will. The more evidence you can give the court that the testator was lucid while signing the will, the better the chance that the testator’s will not be set aside. 

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. on 407-732-7620 and set an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com 

This article is for informational purposes only and does not form an attorney-client privilege.