Competency to Sign a Last Will and Testament

In order to validly execute a Last Will and Testament in Florida, a person must be of “sound mind.” Mental competency in this context is not a rigid bright line test. A person’s ability to understand his/her acts may vary from day-to-day or even throughout the day depending on medication, fatigue or other factors. Additionally, the threshold for determining competency may vary depending on the complexity of the task being undertaken.

In the case of a Last Will and Testament, “sound mind” generally means that the signer (the “Testator”) must have an understanding of his/her assets, the heir(s) involved and the plan for disposition of the property. More complicated decisions, such as the creation of a trust, may require greater cognitive ability by the signer. (It should be noted that this threshold to execute a valid Will is much lower than the one to show that a person is competent to enter into a contract.)

Generally, the competency of the Testator is presumed, and a person challenging a Will in Court must overcome this presumption. Even proof of the Testator’s incompetency prior to and/or after the signing of the Will may not be enough to disprove competency at the time the Will was signed during a period of lucidity.

However, if you expect that a Will may be contested on the grounds of competency or otherwise, it is best to advise the lawyer drafting it beforehand so that the Will contest will be easier to defeat. The attorney’s ethical obligations are that he/she will not allow documents to be executed if the signer is not competent although there is no requirement that the signer “prove” competency to the attorney and the witnesses.

If a Will contest is anticipated, the attorney may take extra steps to document the signer’s soundness of mind. Some lawyers will ask a series of questions and record the answers for the file.  Precautions can be taken further by getting a concurrent affidavit from the signer’s primary care physician which states what medications are being taken, the breadth of the physician’s familiarity with the Testator, and the Testator’s current condition including the doctor’s opinion of mental competency.

As is generally the case, informing your lawyer of all aspects and concerns will help your lawyer better protect you and your intentions. If the Testator’s mental competency is at issue, challenges beyond the norm are created but may be overcome with good planning and communication.

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