Can an individual with dementia be found to have sufficient capacity to execute a Will?

 In Estate Planning, Probate

Yes, it is possible that a person with dementia may be found to have testamentary capacity, depending on the circumstances surrounding the execution of the Will. Indeed, Florida law presumes that the testator of a Will had the capacity to execute the Will, and it is therefore the burden of any contestant of the Will to prove that the testator was not of sound mind when creating the Will.

Generally, the standard in Florida for testamentary capacity to make a Will or trust is not exactly the same as incapacity in the guardianship context. The case In re Bailey’s Estate defines “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 a substantial benefit from the Will, as well as a general understanding of the practical effect of the Will as executed.” Because individuals suffering from dementia may have periods of lucidity (also known as a “lucid interval”), courts have found that such individuals can be possessing of sound mind at the time when they make their Wills. It is important to note that the only point at which the testator of a Will has to be of sound mind in order to validly execute a Will is the moment at which they create the Will.

Certainly, the validity of a Will made by a person with dementia can be challenged. If the court finds that the testator was diminished in capacity at the time of the Will’s execution, the Will can be invalidated. In addition to estate planning and administering probates and trusts, the attorneys at Bach, Jacobs & Byrne, P.A. are trusted estate litigators who represent clients in challenging (and defending) testamentary documents after the testator’s death.

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