Florida Probate Litigation Lawyer Blog
Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation
When a loved one grows older, their caretakers’ ever growing to-do list can be overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.
Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.
Understanding the Nature of a Will and Natural Objects of Bounty
The most important thing for a client to understand is the nature, purpose, and contents of the will or trust that is created. This is especially important when a client has Alzheimer’s or dementia, as these conditions affect how a person recognizes their family and friends. The purpose of creating a will is to prevent property from passing through intestate succession, which occurs when a person dies without a valid will. However, even if a will is drafted, it is still important for a client to be able to identify the people who stand to inherit from them, such as their ancestors, spouse, and children or other lineal descendants.
Identifying Real and Personal Property
In addition to understanding the nature of the will, the client must also be able to identify their real and personal property. If a client cannot remember whether they own certain property or where it is located at the time the will is created, this could prove to be an issue if the validity of the will or trust is ever litigated.
Protection from Undue Influence
Undue influence is influence that causes a person to act inconsistent with their own free will. Certain psychological conditions and illnesses increase vulnerability and susceptibility to undue influence. In Florida, a claim for undue influence may arise when a beneficiary (an exception is created if the beneficiary is a spouse) has a confidential relationship with the testator and tenaciously seeks to benefit from a contested will. It is important that a lawyer draft the will to safeguard it from undue influence and decrease the probability of future probate litigation.
Legal Questionnaire
A legal questionnaire is a document that contains a series of questions designed to test a client’s legal capacity at the time they answer the questions. The questions will test whether the client has a rational understanding of their marital status, character of property owned, and the purpose of estate planning amongst other things. The answers to these questions will assist a lawyer in determining whether it would be prudent to move forward with drafting the will or if other steps are necessary.
The attorneys at Chepenik Trushin are experienced in estate planning, probate administration, probate litigation and guardianship law. Please do not hesitate to contact us today for an initial consultation; Bart Chepenik, direct 305-613-3548, Brad Trushin, direct 305-321-4946, office (305) 981-8889.
