Requirements for testamentary capacity

Question 1

Age or emancipation requirement

Answer 1

To execute a valid will, the testator must be at least 18 years old or else be an emancipated minor

Question 2

How can a minor become emancipated?

Answer 2

Emancipation may occur by marriage, even if it ends in divorce

Emancipation may also be had by court order to those 16 or older

Question 3

Sound mind requirement

Answer 3

Defined in Florida by case law as:

1. The ability of the testator to mentally understand in a general way the nature and extent of the property to be disposed of, and
2. The testator’s relation to those who would naturally claim a substantial benefit of the will, and
3. A general understanding of the practical effect of the will as executed.

Testator must know:

1. What property he owns
2. Who would naturally inherit
3. General effects of dispositive plan

Question 4

Who has the burden of proving testamentary capacity?

Answer 4

Every person is presumed to have testamentary capacity

Burden of proof is on the challenger

Question 5

What if a person loses their testamentary capacity?

Answer 5

Subsequent incapacity is irrelevant, only that at the time of the execution of the will

Question 6

Lucid interval

Answer 6

a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity

If testator has been declared incompetent, the burden of proof is on proponent/supporter of will to prove lucid interval

Question 7

Insane delusion

Answer 7

A spontaneous conception and acceptance as fact of that which has no real existence except in imagination

Persistently adhered to against all evidence and reason

No evidence to support, no reasonable hypothesis can support, no foundation in reality

A will or provision may nevertheless be stricken if executed under an insane delusion