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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 is a litigator and founding member of the firm’s Privacy, Cybersecurity and eDiscovery Group. She focuses her legal practice on complex business litigation, banking litigation, probate & trust litigation, guardianship, intellectual property litigation, labor & employment litigation, family law and step-parent adoption.

Melody  has worked on matters involving a wide variety of business disputes, employment contracts, non-competition agreements, non-disclosure agreements and trade secrets. Her estate litigation practice focuses on matters involving wills, trusts, or guardianships.

A frequent author and lecturer on the topics of employment law, eDiscovery, workplace privacy and technology, Melody assists clients in preparing document retention and destruction policies. She has litigated complex cases involving voluminous amounts of electronically stored information (ESI), designing review platforms and managing document preservation, collection, and production efforts through settlement or trial.

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 danced with a professional ballet company as an apprentice dancer. Lynch received her bachelor’s degree from Butler University, is a graduate of Stetson University College of Law and holds an M.B.A from Stetson University. She often calls on her educational background, augmented by experience, to counsel clients on complex business and employment matters. She has represented clients in the health care, environmental, hospitality, and banking industries, among others.

Additionally, Melody is heavily involved in the Central Florida community and has been awarded with the Presidential Leadership Award by the Orange County Bar Association. Additionally she was named "40 under 40" by the Orlando Business Journal. She holds positions on boards of several organizations, which are all included below. She is a Guardian ad Litem for the Legal Aid Society where she represents the interests of abused and neglected children. She is a pro bono attorney for Seniors First where she represents the interests of indigent elderly wards. 

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