What if Testamentary Capacity is Questioned?
If the client has already been diagnosed as suffering from diminished capacity, but the estate planning attorney is confident the client has the requisite mental capacity to execute a testamentary instrument under Florida law, then in addition to other efforts focused on documenting the client’s current mental capacity, it may be helpful to explicitly address the issue in the document. For example:
Because I have been diagnosed as having senile dementia, probable Alzheimer’s, I recognize that some persons who will be disappointed with the provisions of my testamentary plan may question my capacity and may consider challenging the validity of this instrument. However, my illness has not progressed to the point that my judgment and thinking about my assets, my loved ones and my estate plan have been materially impaired. I have given very careful consideration to my testamentary affairs, and I affirm that the dispositions made in this instrument reflect my decisions, which I have carefully and unequivocally reach after deliberation and after seeking the advice and counsel of my attorney PERRY MASON, who has prepared this instrument at my direction. My attorney and I are initialing here, ________ (testator), _________ (attorney), to reflect my attention to and understanding of this paragraph.
