Top 3 Most Fundamental Tests for Every Estate Plan
It matters little, if at all, how smart the person is or how brilliant her attorney is if one critical component is not met—mental capacity! The mental capacity for Wills and Revocable Trust Agreements MUST be present for any bequest to be valid.
Testamentary CapacityA testator (i.e., the person making the estate plan) needs to have the requisite testamentary capacity to make a valid Last Will & Testament, much less any other common estate planning documents. However, testamentary capacity is a relatively low threshold. To have testamentary capacity, a person must be at least 18 years old and of sound mind. (? 732.501, Fla. Stat.)
The fundamental test of whether a testator is of sound mind and memory when, at the time she executes the estate planning document, is that she must:
1. Understand the nature and extent of the property she owns.
2. Know who would naturally inherit under the will.
3. Understand the practical effect of the will as executed.
(Diaz v. Ashworth, 963 So. 2d 731, 734 (Fla. 3d DCA 2007).
Consequences of Lack of Testamentary CapacityIf any one of these elements is missing, the testator fails the test--and does not have testamentary capacity to make a valid estate plan. Accordingly, this is one of the ways to prevail in a will contest (i.e., litigating the validity of a will).
The key questions to establish testamentary capacity are:
1. Whether the testator understands, in a general sense, what she owns?
2. Whether the testator understands who naturally would inherit the property?
3. Whether the testator understands the effect of executing a will (i.e., and that the document will be reallocating her property after death)?
4. Whether the testator understands how the Last Will & Testament affects who will, and will not, receive her property at death?
The standard for testamentary capacity that applies to wills is also the standard for capacity to create a revocable trust (? 736.0601, Fla. Stat.).