It is common for people to wait to create their estate plan, and often, people wait too long. An example of waiting too long is when someone has dementia or some other ailment/mental illness that has made them mentally incapacitated. Their loved ones may become concerned with what happens to their estate and inquire about a will. The problem is that someone who is mentally incapacitated cannot create a will.
A person must be of sound mind to create a valid will in Florida. See Florida Statute 732.501. To be of sound mind for the purposes of creating a will, the person must understand:
- The nature and extent of the property the person owns.
- The parties inheriting under the will.
- The practical effect of the will as executed.
See Diaz v. Ashworth, 963 So. 2d 731, 734 (Fla. 3d DCA 2007).
If any of the foregoing elements are missing, then the person does not have the capacity to make a valid will. It should be noted that a person does not have to be of sound mind at all times, just at the time the person executes the will. For instance, a mentally ill person may execute a valid will in Florida if that person executes the will during a “lucid interval.” See Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. 3d DCA 1997).
It should also be noted that someone with a power of attorney cannot execute or revoke a will or codicil in Florida on behalf of the principal. See Florida Statute 709.2201(3)(d). In other words, even if you give someone power of attorney, they might not be able to complete your estate plan for you if you become mentally incapacitated. It is important to prepare your estate plan early and keep it updated.