older woman sitting with younger man

When someone passes away, it can be incredibly upsetting and overwhelming. However, when examining their will, their loved ones may find that something doesn’t seem right. Unfortunately, if they have reason to believe the creator of the will was not of sound mind at the time they created the document, they may contest the will during the probate process. As such, if you are the executor of a will that is being challenged, you may not know how to proceed. Generally, the best thing to do is connect with a Pasco County, FL probate lawyer who can help you navigate those claiming a lack of testamentary capacity during the probate process.

What Is Testamentary Capacity?

Testamentary capacity is a term used to describe a person’s ability to create a legally binding and valid will. Essentially, this is granted to anyone over the age of 18 who has the mental capacity to understand the legal implications of creating a will. To determine mental capacity, the testator or creator of the will must understand the following:

  • The extent of the property they own
  • The natural object of their property
  • The disposition their will is making (essentially the choices they are making regarding property distribution)
  • The ability to use these elements to create a coherent plan

You should know that the testator’s mental capacity matters most when they are writing or amending the terms of their will. Essentially, if they are of sound mind at the time they write their will, it will be deemed valid, even if their mental capacity declines shortly after.

What Should I Do if I Need Help?

If you are the executor of a will and questions have been raised regarding the mental capacity of the testator, understanding what you must do is critical. As the executor, it is important to understand that any issues that arise as you are probating the will are your responsibility. However, you may not know what to do during these issues, so it’s in your best interest to connect with an experienced attorney. Because you are acting in your fiduciary duty to best serve the deceased and their estate, you must proceed carefully.

Generally, you’ll first need to read and reply to the complaint filed. After doing so, you’ll need to gather evidence to support your claims that the testator did have mental capacity at the time they were writing their will. This can include the attorney who helped write it, medical records and witnesses who knew the deceased’s health and mental capacity.

As you can see, this can be an incredibly complex process. Unfortunately, you’ll find that trying to navigate this process can be overwhelming and you may find that you can even be held responsible if you make the wrong decision. That’s why connecting with an experienced attorney who can help you navigate this process is critical. At the Law Offices of Matthew J. Jowanna, our dedicated team can help. Connect with us today to learn how we can assist you if you need help probating a will.