Probate Litigation: Challenging an Elder’s Mental Capacity

When an individual becomes elder, the mental capacity is frequently contested in a probate court. Those who are not given inheritance in the will could contest the elder’s intent and plea, particularly those who are mentally challenged.

The information presented in this document is merely intended for educating the reader; for further information, contact a practicing lawyer focused on issues pertaining to Florida Probate Laws.

To prove that the elder individual was mentally challenged when the will or trust was written, two conditions must be met:

1.    The individual was unable to comprehend the characteristic of the testamentary action.
2.    The individual did not have sufficient knowledgeable about his or her property at the time that the will was created.

Mental deficiency can also be proven if the individual was unable to establish the association with his family at the time that the will was created. It must be proven that the individual did not recognize the impact on the family due to the decision that was written in the will.

There are instances when a mentally challenged individual is unjustifiably pressured by another individual, where one attempts to persuade the elderly family member to be granted a large share of the properties. This instance results to undue influence and prove that the individual is mentally challenged.

The court does not consider an individual’s present mental capacity. The court will consider the person’s mental capacity at the time that the will was created. In case the judge reckons that the individual was mentally capable of making positive judgment at the time that the will was created, then the will is deemed valid. Otherwise, the case will be complex.

The court’s role is to establish what is just based on the law. The court will have to review the will’s status and legality. The court will have to resolve what is reasonable for both parties as far as the assets are concerned.

In Florida and other states, the individual will be requested to perform a survey to examine the mental capacity. It will aid the attorney to measure the individual’s mental capacity at the time that the will was created. Another means for determining an individual’s mental capacity is the testamentary capacity instrument, a tool that was conceived by a distinguished psychologist.