“[P]ost mortem squabblings and contests on mental condition . . . have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not accepted as the normal condition of testators.” Lloyd v. Wayne Circuit Judge, 23 N.W. 28 (Mich. 1885).
All litigation is uncertain, but why are will contests especially so? Think “worst evidence” rule, a concept used by famed law professor John Langbein in Will Contests, 103 Yale L.J. 2039 (1994), to explain the inherent difficulty in litigating will contests. Florida’s version of the worst evidence rule is F.S. 732.518, which tells us that wills can’t be contested until after the testator is dead. This means that the single most important witness in all of these cases — the testator — is never available to provide clarifying testimony or be physically/cognitively examined or be cross-examined. That void forces courts to rely on secondary, often self-interested, hearsay testimony from potential heirs or other parties, which is considered the “worst evidence.”
Ante-Mortem Probate
Some states (but not Florida) have come up with a solution to the worst evidence rule in will contests. These states allow for a declaratory judgment procedure where a testator can obtain a court determination of the will’s validity while alive that binds potential heirs, thereby preventing future litigation by these parties. These procedures, sometimes called “Ante-Mortem Probate,” resolve issues of capacity and undue influence before death, while the single most important witness (the testator) is still around to tell us exactly why his will’s valid and, if necessary, be examined for testamentary capacity. I’m a big fan of this approach and wish Florida had similar legislation. Until then we need to work with what we have, which are evidentiary presumptions.
Evidentiary Presumptions & Will Contests
The law’s developed evidentiary presumptions to address the worst-evidence problem in will contests. But those presumptions work in opposite directions depending on how the will contest is framed. If a will’s challenged on undue-influence grounds the case can’t be decided pre-trial by summary judgment once the presumption is triggered. In other words, a challenger is guaranteed a trial once the undue-influence presumption is triggered. Not so for testamentary-capacity cases. Why? Because the evidentiary presumption in favor of capacity never shifts; a testator is always presumed to have had capacity — even if only for a single “lucid moment” when he signed his will, which means the capacity issue can be determined in a pre-trial summary judgment proceeding. No guaranteed trial. This distinction can have a profound impact on how a case is decided, as the parties in the Reeves case recently learned.
Case Study
Reeves v. Gross, 403 So.3d 362 (Fla. 3d DCA January 29, 2025)
The decedent was 100 years old when he executed a last will and testament bequeathing almost the entirety of his estate to a charitable foundation while expressly disinheriting his grandson, who the decedent believed had received the entirety of his inheritance during his lifetime. The grandson challenged the will, alleging that the decedent was suffering from cognitive decline and lacked testamentary capacity at the time the will was executed.
In support of these allegations the grandson presented an affidavit from a psychiatrist who had never examined the decedent while he was alive (how could he, the will contest didn’t commence until after the decedent’s death), but instead relied on the best evidence available to a challenger in a will contest case: the decedent’s extensive medical records. Based on this review the challenger’s expert witness concluded that at or around the time he executed his will, the decedent suffered from “acute brain impairment (delirium) and / or a major neurocognitive disorder (dementia).”
In defense of the will the personal representative countered with the testimony of multiple witnesses who had personally interacted with the decedent at or around the time he signed his will, including his well-respected longtime attorney, all of whom confirmed the decedent was of sound mind and possessed testamentary capacity at the time he executed his will. The personal representative then moved for summary judgment on the basis that no evidence had been presented to support the decedent lacked capacity at the time he executed the will. The trial court granted the motion and the grandson appealed.
The 3d DCA explained the evidentiary presumption in favor of testamentary capacity — even in those cases where a person’s been declared legally incompetent — as follows:
The substantive evidentiary burden at trial is significant here because “[t]he burden of invalidating a will because of lack of testamentary capacity is a heavy one ….” Hendershaw v. Est. of Hendershaw, 763 So. 2d 482, 483 (Fla. 4th DCA 2000). Indeed, Florida recognizes a “presumption of testamentary capacity.” Id. Further, “[t]o execute a valid will, the testator need only have testamentary capacity (i.e. be of “sound mind”) which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed.” Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. 3d DCA 1997).
Florida also recognizes that individuals with issues of mental capacity often experience lucid moments. “Indeed, it is only critical that the testator possess testamentary capacity at the time of the execution of the will.” Id. “Testamentary capacity is determined only by the testator’s mental capacity at the time he executed his will.” Hendershaw, 763 So. 2d at 483. See also id. at 484 (“Although there was some testimony that on some day in 1986 the decedent would not have been competent to make a will, there was no testimony that in December 1987, when the will was actually executed, the decedent lacked such a capacity.”). Even where a person has been declared legally incompetent, his will may be recognized when the evidence demonstrates “that the will was executed during a lucid moment.” Am. Red Cross v. Est. of Haynsworth, 708 So. 2d 602, 605 (Fla. 3d DCA 1998).
Is a “possibility” of lack of capacity enough to get you passed summary judgment? NO
Against the backdrop of Florida’s evidentiary presumption in favor of testamentary capacity, it’s almost impossible to prove lack of capacity in the absence of a neurological examination of the testator by the challenger at the time the will’s executed proving incapacity — which never happens because will contests only happen after the testator is dead. The best a challenger can do is rely on an after-the-fact expert witness examination of the testator’s medical records to prove by circumstantial evidence the “possibility” of lack of capacity at the time the will was executed. Is this enough to get you passed a summary-judgment motion? Nope, so saith the 3d DCA:
Dr. Agronin may have established the possibility that Garth, Sr. did not have testamentary capacity at the time he signed the will. Mere possibility, however, does not satisfy the “heavy” burden of overcoming the presumption of testamentary capacity at trial. Hendershaw, 763 So. 2d at 483. It therefore is similarly insufficient at summary judgment. In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d at 75. See also Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1037 (Fla. 3d DCA 2019) (noting that “an affidavit averring a pilot had sometimes in the past allowed other persons in a plane to pilot aircrafts did not create an issue of fact as to whether the pilot was allowing another person to pilot the aircraft during a particular fatal crash”).
Lesson learned?
How a will contest is framed can make all the difference in the world. Challengers almost always plead both lack of capacity and undue influence. If you’re playing offense in this kind of case, you want to spend all your time litigating the undue-influence leg of your case. Why? Because once the presumption of undue influence is triggered, the summary-judgment risk is eliminated. On the other hand, if you’re playing defense in this kind of case, you want to spend all your time litigating the lack-of-capacity leg of the case. Why? Because winning that issue on summary judgment is not only possible, it may be easier than you think.