Who Has Capacity to Make a Will?

According to Florida Statute 732.501: “Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.”

What is “sound mind” and how is it defined and determined in the State of Florida?

As the term implies, “sound mind” refers to a person’s mental fitness and ability to enter into and sign legally binding documents. Having a sound mind means that a person fully understands the nature and extent of the provisions and disposition of property and assets designated in their will or trust, and has a clear understanding of the effects of the document if it were to be fully executed. In the event that a testator’s capacity is challenged, the court can take notice of the testator’s medical reports or other evidence related to medical findings regarding the testator’s capacity at the date of signing, if such documents exist.

To avoid having a will or trust disputed over questions of “capacity,” having a skilled attorney involved in the drafting and finalization of the document can prevent probate proceedings and ensure that the testators last wishes are carried out after his or her death. In the event that the testator’s capacity is questioned, the attorney can attest to their observations of their client’s mental state or “soundness of mind” at the time of their representation.

It is important to note, that in the State of Florida, the statute regarding “capacity” does not require a testator to be of “sound body” and places no significance on the testator’s physical fitness in relation to his or her capacity. A testator can be of very poor physical health and may have only a short time to live, but this does not have any effect on the testator’s soundness of mind or capacity.

Individuals needing help or assistance in elder law or estate planning services can easily contact The Law Office of Michelangelo Mortellaro P.A.—the best estate planning attorneys in Tampa, FL.

To schedule a meeting with an attorney, please call 813-501-6945.