Florida law requires that the testator exhibit a minimum level of capacity in order to execute a valid will. Section 732.501 of the Florida Probate Code sets a low threshold of capacity and simply provides:
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.
Fortunately for probate attorneys, the Florida Courts have elaborated on the issue of testamentary capacity, and interpreted “sound mind” to mean the testator’s 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.” Hendershaw v. Estate of Hendershaw, 763 So. 2d 482, 483 (Fla. 4th DCA 2000). In other words, a person making a will meets the requisite threshold of testamentary capacity as long as the testator knows: 1) what assets he or she owns, 2) the members of his or her immediate family and 3) who will receive the testator’s assets pursuant to the will being executed.
In order to contest a will based on lack of testamentary capacity, the testamentary capacity is to be measured only by the testator’s capacity at the time he or she signed the will. Lack of testamentary capacity must be proved by the opponent(s) of the will by a preponderance of the evidence.
