Florida Probate Attorney

A Look at the Lack of Mental Capacity in Probate Litigation

Posted on 17. Jul, 2011 by Admin in Probate Law

As people grow older, their mental capacity is often challenged in probate court. People who did not originally receive an inheritance in a will may challenge the intentions and desires of elderly people with a lack of mental capacity.

All information is provided for educational purposes only, to learn more regarding Florida Probate Laws consult with an experienced attorney.

There are a few things that must be proven to show a person did not have adequate mental capacity at the time of setting up a will or trust. First, one will need to prove that the person did not understand the nature behind the testamentary act. Second, one must prove that the person did not have an understanding of his or her property at the time of setting up the will.

Another factor that must be proven for lack of mental capacity is that a person did not understand his or her relationship to living relatives at the time of creation for a will or trust. A person must be shown not to understand how the interests of those loved ones may have been affected by a choice made at the time of a will’s creation.

In some cases, a person with a lack of mental capacity is unduly influenced by another person. A person with a lack of mental capacity may receive strong pressure from a relative to give him or her a majority of the assets through a will or trust. If this is the case, one can prove undue influence and show that a person had a lack of mental capacity.

In a court of law, a person’s current mental state will not be taken into account. Rather, a court will only analyze a person’s mental state at the time in which execution of a will took place. If a judge finds that a person had the ability to make sound decisions at the time of a will’s execution, then the will stays valid. If a person is decided to not have had adequate mental capacity at the time of a will’s formation, then a probate case becomes more complicated.

A court will have to determine what is fair according to the letter of the law. To do this, a court will look at the status and validity of the will. The court will also decide what is fair for all parties in regards to the assets and estate at stake.

In some states, such as Florida, a client will take a survey to determine his or her mental capacity. The survey will help a lawyer assess the client’s mental capacity at the time of a will’s creation. The testamentary capacity instrument is another tool that may be used to assess a client’s mental capacity at the time of a will’s creation and execution. This instrument was fully developed by a renowned psychologist.