Blogs from October, 2008


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. An equally important challenge to the testamentary capacity of a person making a will in Florida where that person is a drug addict and/or suffers from alcoholism.

First, simply because the person making the will is an addict or has a drinking problem does not automatically render any will that the person executes invalid as a matter of law. The rule was stated long ago in a Florida Supreme Court opinion:

“The rule appears well settled that if a testator is cognizant of the nature and extent of his property, the proper objects of his bounty, and the nature of the testamentary act at the time he executes his will, the fact that he is habitually intoxicated or uses alcohol frequently, or has even been declared a habitual drunkard does not necessarily deprive him of testamentary capacity. The alike rule applies to testamentary capacity where the ravages of disease combine with the effects of alcohol to affect the testator. One may be a physical wreck and may suffer from Bright’s disease, the use of narcotics, drugs, or insomnia, and still have testamentary capacity.” Fermstrom v. Taylor, 107 Fla. 490, 145 So. 208 (Fla. 1933).

Rather, the cases I accept and prosecute attempt to answer the inquiry into whether or not, and to what extent, the person making the will had sufficient capacity to make a will at the time it was executed.

Sometimes, the conclusion that the person was incapacitated at the time the will was executed is an easy conclusion to make where there is evidence discovered during the case indicating that the drug and/or alcohol abuse had progressed to the point where it caused permanent impairment. This evidence usually finds its basis in the decedent’s medical records and is then expanded on at trial by a medical expert or toxicologist.

In other cases, the will may be invalidated by showing evidence that the person making the will was under the influence of alcohol or drugs at the time the will was executed. I have seen cases that were successfully developed through locating and interviewing witnesses who could testify to the person’s bizarre behavior and the extent of the person’s problem-bartenders, employers, liquor store owners, and neighbors are all potential witnesses to this critical issue.
A recent Florida case illustrates the type of evidence that will invalidate a will. In Miami Rescue Mission v. Roberts, 943 So.2d 274 (Fla. 3d DCA 2006) the court of appeals affirmed the probate court’s invalidation of a will offered for probate where there was evidence that the will was executed at a time when the testatrix was hospitalized with severe pain and under the influence of very strong medication. The following day she passed away. The effect of Mrs. Manucy’s 2005 will was to disinherit her longtime caregiver and friend, Fair Ellen Roberts, and, instead, leave her residuary estate to four charities, in equal shares. Other evidence included testimony that the testatrix developed delusions that Roberts had abandoned her, “let her dog die,” and was stealing from her.

Roberts used the testimony of a medical professional at trial to assist the court in understanding how the medication given to the testatrix affected her in the days leading up to her passing. The evidence at trial also included the testimony of how the personality of the testatrix completely changed in the period of time leading up to the will execution. This evidence was corroborated by testimony that the testatrix failed to recognize Ms. Roberts and instead, referred to her by her daughter’s name.

Even though there was plenty of evidence presented at trial that the testatrix was found to be alert by the nurses treating her throughout her hospitalization, these observations and classifications by the nurses were challenged and disagreed with by the medical professionals who testified on behalf of Ms. Roberts. One of the physicians testified that certain forms of delirium are often mistaken as cooperativeness in a patient. “Further, a nurse’s observation that a patient is alert does not equate to a legal finding that the patient possesses testamentary capacity.”


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