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Determining Mental Capacity Required to Make a Will or Trust, Gift, Contract or Deed

By Brandon D. Bellew | Categories: Blogs, Trusts & EstatesPrint PDF September 2018

A person must be of “sound mind” when he or she makes a will.1 This standard also applies to a trust. Florida case law defines “testamentary capacity” as “the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed.”2 This does not mean that a person must be able to understand all details or “legalese” contained in a will or trust or that the person must know the specific dollar value of his or her property, but the testator must have a general understanding of the effect of the document. 

A person may possess testamentary capacity, but the document may be invalid if it was executed at a time the person was suffering from an insane delusion. This occurs when the testator (1) had no basis for his or her conclusions, (2) rejected evidence that he or she was mistaken about those conclusions and (3) executed the will or trust because of those conclusions.3 For example, a testator executed a will or trust that disinherited a child because that child did not keep in contact with the testator, but the child actually was in contact with the testator.4

Testamentary capacity is determined at the time the testator executes the will or trust.5 Testamentary capacity is presumed, and the burden of proving otherwise is on the party contesting the validity of the document.6 However, if the testator had been adjudicated incapacitated by a court before the will or trust was signed, there is a presumption of incapacity, and the proponent of the document has the burden to prove capacity.7 A will or trust is valid if an incapacitated person executes it during a “lucid moment or interval.” A “lucid moment” is a time where the person returned to a “state of comprehension.”8

Under Florida law, the right to dispose of one’s property is highly valuable, and a will or trust should be held valid whenever possible.9> A person who is old, physically frail, sick, suffering from failing memory or wavering judgment does not necessarily lack testamentary capacity.10 The testator’s mental capacity at the time he or she executed a will or trust can be established through direct evidence (e.g. testimony of individuals who were present when the contested document was signed) or by indirect proof and inferences from evidence of the testator’s mental condition leading up to and following the execution of the testamentary document (e.g. medical records and testimony of witnesses who interacted with the person before and after the signing).11 Therefore, evidence related to the testator’s mental condition both before and after the time that he or she executed the testamentary document is relevant to the determination of testamentary capacity.12

The slightly different standard under Florida case law that is necessary to determine the mental capacity to make a deed,13 enter into a contract,14 or to make a gift15 is that the person must understand the nature, effect and significance of the transaction. The relevant evidence for this determination is similar to a determination of testamentary capacity.

The first place to begin the inquiry into mental capacity is the document itself. The terms of the document should make sense based on the facts of the person’s life. The terms of a will or trust that disinherit children or other relatives that would be natural beneficiaries and, instead, includes individuals who are either casually or barely known to the testator as beneficiaries, or that names institutions as beneficiaries that the testator was never involved with during his or her life could be considered by a court as evidence of incapacity.16 It must be determined whether the person has a logical rationale for any dramatic changes from previously executed testamentary documents. Similar factors should be considered for the determination of capacity for a gift, deed or contract (e.g. whether the transaction is fair, logical, and the maker intends and understands its effect).

The next area of inquiry is receiving testimony and evidence from non-medical witnesses/sources. The following non-exclusive list of factors could indicate incapacity, but no one factor, or combination of factors is conclusive: 1. confusion or inconsistency in communicating wishes/desires; 2. difficulty managing finances or property and/or lack of understanding nature and extent of finances or property; 3. inability to manage own medical or healthcare decisions/treatment; 4. irrational or unintelligent actions; 5. substance abuse and addiction; 6. failure to appreciate consequences; 7. uncharacteristic disturbing behavior such as hallucinations, delusions, aggressiveness and impulsiveness; and 8. problems with short term and long term memory. This is a non-exhaustive list for consideration. These factors can be established by the testimony and records of family members, friends, neighbors, attorneys, financial advisors, clergy, caregivers, or anyone else who had any substantial interaction with the decedent.

The third area of inquiry is medical evidence, which is almost always indirect evidence—i.e. relates to a time before or after the contested transaction. This is because a medical professional is not typically present during the transaction. The following non-exhaustive list of facts found in medical records could be indicia of incapacity: 1. Neurologic issue, mental disorder, or other ailment that affects mental function (e.g. Alzheimer’s, dementia, psychosis, brain disease, stroke, organ failure, etc.); 2. behavioral disturbances or psychiatric symptoms; 4. ability to make his/her own medical decisions; 5. psychiatric or psychological exams; or 6. substance addictions. These facts are established through medical reports, nurses’ notes, lab reports, medical tests, intake and discharge summaries, psychiatric and psychological reports and prescribed medications. A medical professional will typically not opine as to a person’s capacity at the time of a specific transaction but will testify about medical condition, effects of the condition, whether effects were constant or episodic, prognosis of the condition, effects of prescribed medications and related issues.

            A determination of incapacity is based on a totality of the circumstances. All facts and circumstances related to the time before, during and after the transaction must be considered as part of the analysis.




1. Fla. Stat. § 732.501.
2. Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. 3d DCA 1998).
3. Miami Rescue Mission, Inc. v. Roberts, 267 So. 2d 686 (Fla. 2d DCA 1972).
4. See Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011).
5. In re Estate of Dunson, 141 So. 2d 601 (Fla. 2d DCA 1962).
6. Id.
7. In re Estate of ZIY, 223 So. 2d 42 (Fla. 1969).
8. American Red Cross v. Estate of Haynesworth, 708 So. 2d 602, 606 (Fla. 3d DCA 1998).
9. Dunson, 141 So. 2d at 604.
10. Id.
11. See In re Estate of Zimmerman, 84 So.2d 560 (Fla. 1956).
12. Id.
13. Long v. Moore, 626 So. 2d 1387 (Fla. 1st. DCA 1993).
14. John Knox Village of Tampa Bay, Inc. v. Perry, 94 So. 3d 715 (Fla. 2d DCA 2012).
15. Saliba v. James, 196 So. 832 (Fla. 1940).
16. Id.

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