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News & Knowledge

Mental Capacity: An Easy Challenge Or A Tough Road?

May 15, 2019

By: Melody Lynch

As the population in Florida continues to age, litigation stemming from allegations related to lack of capacity is on the rise. Family members or other beneficiaries looking to challenge legal documents often gravitate towards this cause of action. This could encompass a challenge to a wide array of legal documents, including: wills, trusts, or powers of attorney. Clients often seek our counsel about the standard in Florida for testamentary capacity. Many are surprised to learn that the standard is actually fairly low. Physical failings and advanced age do not automatically result in lost capacity. Even use (or sometimes abuse) of alcohol or narcotics is often not enough to demonstrate a lack of capacity. Individuals with mental health diagnoses are not precluded from making a valid estate plan either.

In Florida, there is a heavy burden to prove by a preponderance of the evidence that a person making a will lacked capacity at the time that the will was executed. Courts will presume mental health is intact until that is rebutted by strong evidence to the contrary. Obtaining relevant evidence to demonstrate a lack of capacity can be difficult but is certainly possible with the right set of facts and appropriate legal strategy. Further, trust documents can provide a different standard for proving testamentary capacity.

Florida’s public policy favors following the disposition that is set out in a person’s estate plan. In order to effectuate those wishes, testamentary capacity need only be present at the time the document is executed. Generally, the person must understand the following: (1) the nature and extent of their estate; (2) the relationship to the people who would naturally claim a benefit; and (3) a general understanding of the practical effect of the will.

If you have questions about an issue related to lack of capacity, please contact Melody Lynch at 407-418-6447 or


Melody Lynch focuses her practice on probate, trust & fiduciary litigation, contested guardianships, and complex business disputes. Her MBA complements her law degree when she analyzes financial statements and handles other complicated issues involving assets. 

A significant portion of Melody’s practice is devoted to resolving conflicts among family members and other estate beneficiaries, fights over missing assets and property ownership, claims by or against fiduciaries, guardianship challenges, and other proceedings requiring the interpretation of wills and trusts. She frequently helps charitable organizations, foundations, trustees and other institutional beneficiaries of large estates navigate the probate process. Whether in or out of the courtroom, Melody handles these delicate – and often emotional – issues not just with legal proficiency but with compassion as well.  

Melody’s experience extends to other business disputes too, particularly in the employment law arena with matters involving restrictive covenants as well as non-compete and non-disclosure agreements. She has protected employers in a wide range of industries, including medical devices, pest control, physicians and physician practices. 

In addition, she is a Guardian ad Litem for the Legal Aid Society where she represents the interests of abused and neglected children. She also is a pro bono attorney for Seniors First where she represents the interests of indigent elderly wards. 

The court room isn’t the only stage on which Melody has appeared. Before pursuing her career in law, Melody attended college on a ballet scholarship and was an apprentice dancer with a professional ballet company. A native of Orlando, her passion for both the arts and the area informs her leadership roles in the Central Florida community. She serves as president-elect of the Orlando Philharmonic Orchestra, was named to the prestigious Orlando Business Journal’s "40 under 40" list, and was awarded the Presidential Leadership Award by the Orange County Bar Association. 

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