Probate, trust, guardianship and inheritance litigation
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A Review Of Testamentary Capacity In Florida

By:  Jeffrey Skatoff, Esq.

A testator is required to be of sound mind, that is, to possess testamentary capacity, in order to be able to make a valid will in Florida.  Indeed, the lack of testamentary capacity is one of the most common grounds to challenge the validity of a will under Florida law, along with undue influence.


To have testamentary capacity under Florida law, the testator must have the ability to understand in a general way:

  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 his will, i.e., the natural objects of his or her bounty, and
  3. A general understanding of the practical effect of the will as executed.

See Raimi v. Furlong702 So. 2d 1273, 1286 (Fla. 3d DCA 1998).  The Florida Supreme Court has stated:

The making of a will does not depend upon a sound body but upon a sound mind.  By “sound mind” is meant 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 practical effect of the will as executed.

In re Wilmott’s Estate, 66 So. 2d 465, 467 (Fla. 1953).

Capacity Is Measured At the Time The Will is Executed

A testator can progressively lose capacity, and may suffer from dementia at the end of life, but this does not mean that the testator lacked the capacity to make a valid will.  Testamentary capacity is measured at the time the will was executed.

Evidence from shortly before and shortly after the will execution is relevant to establish the testator’s capacity to make and execute the will.  Medical records and witness testimony from around the time of the execution, as well as testimony from the drafting attorney and witnesses to the execution of the will are all important to show that a testator possessed testamentary capacity to create a will in Florida.

In Raimi v. Furlong, the Florida Third District Court of Appeal highlighted the importance of the time period of execution of the will, stating:

A testator may still have testamentary capacity to execute a valid will even though he may frequently be intoxicated, use narcotics, have an enfeebled mind, failing memory, or vacillating judgment. Moreover, an insane individual or one who exhibits “queer conduct” may execute a valid will as long as it is done during a lucid interval. Indeed, it is only critical that the testator possess testamentary capacity at the time of the execution of the will.

Insane Delusion

In Miami Rescue Mission, Inc. v. Roberts, 943 So. 2d 274 (Fla. Dist. Ct. App. 3d Dist. 2006), Florida’s Third District Court of Appeals explained the concept of insane delusion:

Where there is an insane delusion in regard to one who is the object of a testator’s bounty, which causes him to make a will he would not have made but for that delusion, the will cannot be sustained. An insane delusion has been defined as a spontaneous conception and acceptance as a fact of that which has no real existence except in imagination. The conception must be persistently adhered to against all evidence and reason.

In Levin v. Levin, Florida’s Fourth District Court of Appeal sent a case back to the trial court for failure to address an insane delusion claim in its order.  In Levin, a daughter claimed that a will and trust were based upon an insane delusion, because her mother thought that she had only visited her once in 11 years. The mother wrote the daughter an e-mail to this effect, and repeated the accusation to the attorney who drafted her will and trust. However, the evidence showed that the daughter had indeed visited her mother several times in the seven years prior to the execution of her mother’s will and trust.


A person is presumed to have capacity under Florida law.  The burden is on the person contesting the will to show that the Florida testator lacked testamentary capacity when the will was executed.  Evidence often includes:

  • Testimony of the testator’s treating physicians and caregivers
  • Medical records
  • Expert testimony
  • Testimony from friends, neighbors, and family members who can testify about the testator’s ability to have a conversation, manage daily life, the testator’s relationships, and whether the testator discussed the changes to the will
  • Testimony from the drafting attorney and the witnesses to the will

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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