Blogs from April, 2010


Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out!

An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian. 

Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for the appointment of a guardian, which the Court approved.  While under the care of the guardian, the testator was moved around so that the out-of-state relatives did not have contact with her and were unable to locate her for substantial periods.  Despite that a guardian was being appointed, the decedent was seen by a physician and psychiatrist and was found to be lucid.  She then signed a will, leaving her recent friend (who had asked for the guardianship in the first place), and charities which he solely controlled, the entirety of her quite substantial estate.

When the last will and testament of the decedent were sought to be probated, based upon the date of this will that was signed during a time she was declared incapacitated by the court, it would seem unlikely that the will would be admitted and administered based upon the decedent having been appointed a plenary guardian at the time the documents were executed.  However, the case of American Red Cross v. Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998) explains how this unusual conclusion may exist.

In Haynsworth, the controversy concerned three separate wills, all executed during 1993 on February, July, and November.  In July of 1993, a Judge entered an order, nunc pro tunc to May 18, 1993, declaring the testator totally incapacitated.   The testator died in December 1995, and the following months probate proceedings were instituted seeking to administer the February 1993 last will and testament.  Other beneficiaries in Haynsworth subsequently petitioned for the July and November wills to be admitted, despite the decedent being declared totally incapacitated at the time.   

The law in Florida is that where the subject's last will and testament are executed after the testator has been declared legally incompetent, it must be proved that the testator returned to a state of testamentary capacity by demonstrating that the will was executed during a lucid moment.  See In re Estate of Supplee, 247 So. 2d 488, 490 (Fla. 2d DCA 1971)(stating “Florida law is likewise well settled to the effect that although an incompetency adjudication creates a presumption of lack of testamentary capacity as to any will thereafter execute during the continuance of such adjudication, that such presumption may be overcome on proof that the will was executed by the adjudged incompetent during a lucid interval.”)  The terms “lucid moment” or “lucid interval” does not describe a moment when the testator was not patently delusional, rather a “lucid moment” is a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity.  Haynsworth at 606.

Haynsworth went on to set forth the evidentiary burden in presenting evidence as to the capacity of the individual who had been declared incapacitated; it rests with the will proponent.  Id. at 606, citing In re Estate of Ziy, 223 So. 2d 42, 43 (Fla. 1969); Grimes v. Estate of Stewart, 506 So. 2d 465, 467 (Fla. 5th DCA 1987) (finding “[a]though a declared incompetent may have sufficient lucid moments during which to execute a valid will, nevertheless, adjudication of incompetency of a testator creates a prima facie case against the proponent of such a will.”).  The result in Haynsworth was striking the wills that were created during the testator’s court-determined incapacity (because there was no direct evidence of the testator’s lucidity on the days he executed the wills) and then invalidating a provision under the February will which was found to be the result of undue influence.  The unduly influenced part of the will was invalidated then reverted to the residuary. 

In the matter with which my firm was recently dealing, the incapacitated individual had in fact been examined by physician and psychiatrist on the date she executed the new will, and immediately thereafter a judicial determination was sought and entered regarding her capacity to make that new last will and testament.  However, such a determination was made in the decedent’s mental health file, not the Guardian case.  This distinction is important because mental health files (and the report of the examining committee) are not available to the general public whereas guardian files are generally available for inspection at the Clerk of Court.  As such, several years later after her passing when the relatives sought to invalidate the will made during the time their aunt was under guardianship (and declared incapacitated), their challenge was denied based upon the proponent’s ability to satisfy the evidentiary burden that the testator was having a sufficient lucid moment at the time of execution of the new will.


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