Florida Statute 732.501 requires, amongst other things, that the testator be “of sound mind” when executing the Will. Testamentary capacity means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty and the practical effect of a will. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. However, competency is generally presumed, and the burden of proving incompetency is on the contestant F.S. 733.107 (10; In Re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972) This is a heavy burden to overcome based on the presumption of competency. It has been stated that “even a lunatic may make a will….in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647, 649 (Fla. 1954)
Even the showing of incapacity on other days does not create a presumption of incapacity nor does it shift the burden of proof to the proponent. Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th DCA 2000). The Testamentary capacity refers to competency at the time the Will is executed.
However, the heavy burden is not insurmountable and although this showing of incapacity on other days does not shift the burden of proof it can be used to show the mental capacity at the time of execution. On many occasions, there may exist circumstances during the time period leading up to the execution of the Will and even subsequent to the execution that will provide evidence as to the mental health of the Testator at the time of execution. However, the obvious questions then becomes whether subsequent evidence may be used to relate back to the time of the execution of the Will and for what time period prior to the execution can evidence be used to show incompetence at the time of execution?
The Courts have addressed this issue. Florida Law has consistently held that a testator’s mental health at the time of the execution of the Will can be proven in more ways than one. It may be established by direct proof of condition at execution of the Will OR by evidence of mental condition leading up to and following the execution of the Will. In Re: Estate of Lamberson, 407 So. 2d 358 (Fla. 5ht DCA 1981).
The Court in this case looked to a 1956 Florida Supreme Court case, In Re: Estate of Zimmerman, 84 So. 2d 560 (Fla. 1956) where the Court made the following observation:
A study of the pertinent case reveals that the precise condition of the testator’s mental health at the time he executed his Will, may be established in more ways than one. It may be established by the direct proof as to its condition when the Will was executed or it may be established by inferences from proof of his mental condition leading up to and following the execution of the Will when such proof is properly related and connected…”beforehand” and “afterward” proof of the testator’s mental behavior would certainly be a lead to this and would be proper for the court to consider in making up his judgment as to whether or not the Will was made during a lucid interval as appellants contention or whether it was made when the mind was incompetent to do so.
Therefore, evidentiary matter that a contestant may have of the testator’s incapacity both before and after the execution of the Will may be considered by the Court. For example, medical evidence that the Testator was suffering from severe dementia or things such as Examining Reports or other Declarations of Incompetency (i.e. need for a guardian) by a health care professional or a Court should be considered by the Court, even if this evidence pertained to situations subsequent to the execution of the Will. The question is whether such proof is properly related and connected. Consequently, the Court may make inferences from this evidence as to the testator’s competency. In conjunction, similar evidence detailing incompetency substantially removed in time from the execution, both before and after, can also be considered by the Court and inferences may thereafter be drawn if the evidence is properly related and connected.
Therefore, although the burden is heavy to prove incapacity at the time of execution, it is incumbent upon the contestant of a Will to gather as much evidence as possible which details events that have taken place that indicate incompetency of the testator. This can be evidence of instances prior to and after execution of the Will, even if not necessarily near the time of execution. There is no limit in time and scope. The Court will consider such evidence presented and is allowed to draw inferences from such evidence and give it the proper weight in making it’s decision.