The Law Offices of Adrian Philip Thomas

Testamentary Capacity: Do We Need Legal Reform?

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993).

Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court must rely on other evidence, such as: observations of the testator’s behavior reported by neighbors and friends; medical evidence during the time of the will signing and the content of the will itself, just to name a few. My experience as a probate litigator is that there is invariably a contest of competing evidence of the testator’s capacity-for example, there is usually expert evidence that conflicts with non-expert evidence given by those who knew the testator. Read the rest of this entry

Florida Will Contest: Can a Will Be Challenged Based On Decedent’s Alcohol and Drug Abuse?

Florida Will Contest:  Can a Will Be Challenged Based On Decedent’s Alcohol and Drug Abuse?

Earlier I noted that many will contests center on an elderly Floridian suffering from the infirmities of age and the ingestion of prescription drugs to combat their mental deterioration caused by the progression of the many forms of dementia. Equally important are challenges to the testamentary capacity of a person making a will in Florida where that person is a drug addict and/or suffers from alcoholism. Read the rest of this entry

FLORIDA PROBATE BLOG

  • Lost or Destroyed Will

    What happens when the Decedent’s original Last Will & Testament cannot be found? It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. In [...]

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  • ADRIAN THOMAS LAWYER REPUTATION

    “The way to gain a good reputation is to endeavor to be what you desire to appear.”  ~ Socrates The lawyers at Adrian Philip Thomas, P.A. strive to be competent and passionate advocates for their clients while maintaining high levels of professional courtesy and ethical conduct.  For twenty years, we have been serving the needs of [...]

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  • Inheritance Dispute Lawyers

     Remedies Available in Florida Courts Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  [...]

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