Lack of Capacity Will Trust Contest in Florida

A will or trust can be challenged in Florida when the person who signed it lacked the mental capacity to make it. Questions about a signer’s capacity are fact-specific and depend on the particular circumstances of each matter. This page explains the standard, the evidence, and the deadlines that can run out if you wait. Trust Counsel, PL focuses on probate and trust litigation, and its only office is in Coral Gables.

What Lack of Testamentary Capacity Means in Florida

Florida law provides that the capacity needed for a revocable trust is the same as the capacity needed to make a will (Fla. Stat. § 736.0601).

For a revocable trust, the capacity required is the same as for a will (Fla. Stat. § 736.0601).

In a will contest, the person offering the will must first show it was properly signed and witnessed. After that, the person contesting it must prove the grounds for challenging it (Fla. Stat. § 733.107).

Which Documents Are Commonly Challenged on Capacity Grounds

Challenges usually target papers that change who receives property. Common examples include:

• A new will that replaces an earlier one, or a codicil that changes gifts.
• A trust, restatement, or amendment that changes beneficiaries, trustees, or how property is distributed.
• Documents signed in the weeks or months before death, especially those that depart sharply from earlier plans.
• Powers of attorney signed under questions about the signer’s understanding.

Trust disputes can also reach closely held business interests. When a family company sits inside a trust, the trust question and the business question often arrive together.

Dementia Versus Legal Incapacity: The Distinction Courts Draw

A dementia diagnosis describes a medical condition.

Capacity and undue influence are separate grounds. A will is void if its execution was procured by fraud, duress, mistake, or undue influence (Fla. Stat. § 732.5165). It voids a trust or part of a trust procured the same way (Fla. Stat. § 736.0406).

Where the presumption of undue influence applies, it shifts the burden of proof (Fla. Stat. § 733.107).

A person can have capacity and still have been pressured. That is why both claims are often raised together. Capacity looks at the signer’s mind. Undue influence looks at how the document was made. Each needs its own proof.

Evidence Courts Look for in Capacity Cases

Capacity cases are built on records and witnesses from around the signing date. Useful evidence includes:

• Medical records, physician notes, and cognitive screening results from the months around signing.
• Facility or hospital charts that show the signer’s daily condition.
• Testimony from the attesting witnesses and anyone else who saw the signer that period.
• The drafting attorney’s file, including intake and meeting notes.
• Financial records and messages that show how the signer handled money and property.
• Timing: who arranged the meeting, who attended, and whether the change came suddenly.

Preserve evidence early.

Deadlines You Can Lose by Waiting

The will deadline is short. An interested person served with a notice of administration must object to the will’s validity within 3 months after service, or the objection is forever barred (Fla. Stat. § 733.212). That period can be extended only for estoppel based on a misstatement by the personal representative.

Unless sooner barred by subsection (3) of the statute, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration (Fla. Stat. § 733.212).

For a trust that was revocable at the settlor’s death, an action to contest its validity is barred unless filed within the earlier of the chapter 95 period or six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding (Fla. Stat. § 736.0604).

Under Fla. Stat. § 736.0207, an action to contest the validity of all or part of a revocable trust, or the revocation of part of a revocable trust, may not be commenced until the trust becomes irrevocable by its terms or by the settlor’s death. The section does not prohibit such an action by the guardian of the property of an incapacitated settlor.

After a petition for administration is filed, an interested person may waive certain rights or notices, to the extent of their interest, subject to ss. 731.303 and 733.604 (Fla. Stat. § 731.302). Review any waiver before you do anything else.

Under Fla. Stat. § 731.302, after a petition for administration is filed, an interested person, including a personal representative, trustee, or other fiduciary, may waive, to the extent of that person’s interest, any right or notice or the filing of a required document, subject to §§ 731.303 and 733.604, so check whether it applies.

How a Capacity Challenge Works, Step by Step

A capacity challenge usually moves through review, evidence gathering, a filing decision, discovery, and resolution.

1. First consultation. Free first consultation — confidential, with no obligation to continue. Bring the document, the signing and death dates, and any notices you received.
2. Document and timeline. Build a timeline of the signer’s health, relationships, and the signing event. Request the drafting file and medical records.
3. Filing decision. Decide whether to file an objection or petition challenging the will’s validity, venue, or the court’s jurisdiction; it must be filed on or before the date that is 3 months after service of the notice of administration, or those objections are forever barred.
4. Discovery. Take depositions of witnesses, attesting witnesses, and treating providers, then handle motions.
5. Resolution. Depending on the evidence, the matter may move to mediation, settlement talks, or an evidentiary hearing.

How long a contest takes depends on the court’s calendar and the evidence in the case.

Why Trust Counsel, PL for Capacity and Trust Contest Matters

Trust Counsel, PL focuses its practice on probate and trust litigation, trust administration, guardianship, and estate planning. Its only office is in Coral Gables.

Leslie V. Marenco is the responsible lawyer for this page. Tanya Vega is also a lawyer at the firm.

The firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm itself does not act as a trustee or personal representative.

The firm represents beneficiaries, heirs and fiduciaries in these disputes. If you are a beneficiary, heir, or fiduciary, call (305) 707-7126 to describe your situation.

We serve clients in Fort Lauderdale, Boca Raton, West Palm Beach, Doral, Kendall, Pinecrest, Key Biscayne, and Aventura.

Frequently Asked Questions About Capacity Challenges

Talk With Our Team About Your Situation

If you’re sorting through a parent’s papers after a diagnosis, a sudden change in the plan, or a death, you may not know yet whether the signing was valid. You don’t have to sort that out alone. Call (305) 707-7126 or schedule online through our contact page, and we will review the document and the dates that apply with you.