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Who has the testamentary capacity to make a will in Florida?

On Behalf of | Nov 10, 2023 | Estate Planning |

Creating a will is a very important undertaking. This effort helps to empower people to provide support for those they love and choose who will inherit their property when they die. Without a will, Florida state law determines who inherits any property that belonged to the deceased.

However, not everyone actually has the legal authority to draft certain resources related to their own risk of incapacity and what will happen after they die. Individuals must have testamentary capacity to create enforceable estate planning documents.

Adults of sound mind have testamentary capacity

Someone who is at least 18 years of age and who is of sound mind theoretically has the ability to draft a will or similar estate planning paperwork. Florida state law also specifically extends the right to emancipated minors.

Some people find the sound mind requirement a bit confusing, but there is an easily explainable standard that applies. The person drafting the documents must be aware of what the documents mean and what impact they will have. They generally also need to understand the relationship that they have with their beneficiaries and other family members.

Someone who cannot recall the names of their family members, who cannot list their own assets or who struggles to comprehend the implications of their estate planning paperwork likely lacks the necessary capacity to create legally binding documents. Their family members could challenge their will in probate court by raising questions about their capacity at the time of the document’s creation.

Those with memory issues or significant mental health conditions, like schizophrenia, may lack the capacity to draft legally-binding documents. Certain medical conditions will increase the likelihood that the courts will question someone’s testamentary capacity. Alzheimer’s disease and other conditions that cause dementia or confusion can reduce or eliminate the testamentary capacity necessary to draft a will in Florida.

Since someone’s capacity can diminish with health challenges or as they age, many people benefit from drafting documents early in life and then revising them as the situation requires. Thus, having an understanding of Florida’s laws regarding the creation of wills may make it easier for people to create documents that protect them and the people they love while they’re still in a position to do so.


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