Florida statute 732.501 states that a person must be 18 or older and of “sound mind” to make a last will and testament. The age requirement is clear-cut. “Sound mind,” on the other hand, is a fuzzier concept. Most people misunderstand what sound mind means within the context of estate planning, and that can lead to meritless estate planning challenges.
In this post we explain what “sound mind” means in terms of testamentary capacity – i.e., what is required for a person to establish a valid will. Establishing testamentary capacity ensures that the client’s true wishes are carried out. It can also deter dissatisfied potential heirs who would otherwise seek to overturn an estate plan. And if a lawsuit does occur, having established testamentary capacity can defend against allegations that the person was not of “sound mind.”
A Diagnosis Is Not An Automatic Disqualifier
It is often assumed that someone who has been diagnosed with Alzheimer’s Disease or other cognitive impairment automatically lacks testamentary capacity. Obviously there are many instances when that is absolutely true. However, a diagnosis of cognitive impairment, especially in the earlier stages of disease, does not necessarily mean the person lacks capacity to sign a will. Here’s why:
- Timing is everything: An essential point is that for a will to be valid, testamentary capacity must be present at the time the person is signing the document. It is the person’s understanding and competence at the time of execution – not the prior year, not the following week – that is relevant from a legal perspective.
- Lucid Intervals: Many people with Alzheimer’s or other forms of dementia or mental illness have lucid intervals when they function well. Someone who has forgotten how to tie his shoelaces or cannot recall his address one morning may function quite well that afternoon. During a lucid interval, a person may be of sufficiently sound mind to sign estate planning documents.
Assessing Testamentary Capacity
Our experienced Florida estate planning lawyers have the skills necessary to assess whether someone understands what they are signing, knows the function of their will, and grasps the impact of the document on people’s lives.
When we see a client, we start by observing if the person is oriented and alert. But that is just the beginning. We also ask specific, relevant questions and listen carefully to the answers in order to assess if the person has sufficient testamentary capacity. Our questions include:
- Do you understand that you are signing a document that will govern who gets your property when you are gone?
- Do you know who your children are? Your spouse? In other words, we are probing to see if the client is aware of and can identify the “natural objects of their bounty.”
- If you are cutting out someone, can you identify with specificity who that person is, and provide a brief explanation for the disinheritance? (The document should mention the individual being disinherited, but not the reasons for disinheritance. Referencing the disinherited person in the will is evidence that the will-maker did not “forgot” that the disinherited person existed.)
- Do you know what assets you own? The client need not report specific details such as amounts and names of banks. However, he/she must demonstrate knowing the general contours of what is owned and their general value – home, car, brokerage accounts, etc.
Wisdom and Fairness: Not Part of the Sound Mind Standard
A person can leave or not leave assets to anyone he/she chooses, although there are a few exceptions to that rule. In Florida, those exceptions include the surviving spouse and minor children. For example, a surviving spouse is entitled to inherit an interest in the homestead property and to 30% of the deceased spouse’s augmented estate (probatable as well as non-probatable assets). But other than those exceptions, a person has the right to leave assets to whomever he/she wishes.
Our lawyers will of course discuss potential beneficiaries with clients. However, provided a client is of sound mind, clients are entitled to do what they want with their money. Someone may consider the plan to be unfair, unjust or the result of poor judgment, but that is not evidence that the will-maker lacked sound mind.
You Should Take Proactive Steps If There is a Diagnosis
If you are diagnosed with cognitive impairment, it is imperative to do your estate planning promptly, before progression of the disease degrades the sound mind you need to make a legally valid will. This applies not only to your will, but to all your legal documents, including your trust, health care surrogate, property power of attorney, etc.
When Getting A Medical Opinion Is Wise
When a client anticipates that a disgruntled heir will challenge his/her capacity, we recommend that the client be evaluated by a qualified, independent medical professional. By way of example: We had one client with two children, one of whom she was disinheriting. Their relationship had been hostile and strained for years. She believed he would likely sue her estate after she passed, thereby delaying her other child’s inheritance and draining funds from the estate. We agreed it was wise for her to be evaluated for capacity by a geriatric psychiatrist. She met with him one week before she signed her will. She is still alive, but when she passes on, all the safeguards are in place if her son challenges the estate and alleges she lacked testamentary capacity. In the case of another client, not only did a psychiatrist meet with him, but was actually present in our office during the signing of the will.
Another Reason to Avoid Do-It-Yourself Estate Planning
Obviously, creating your estate plan with the guidance of an experienced estate planning lawyer can go a long way to demonstrate testamentary capacity and deter lawsuits. Do-it-yourself planning does not provide those same safeguards. Who is to say what state of mind someone is in when they fill out a form online? Or who else might be in the room, making suggestions and potentially taking advantage of the person’s confusion?
To schedule an appointment to discuss your estate plan, call our office at 561-625-1100.
