At Peter A. Cohen, P.A., we are dedicated to ensuring that family members and loved ones are not unjustly left out of a decedent’s will due to the testator’s lack of capacity or due to undue influence, fraud, coercion or duress imposed upon the testator by others.
Modern medicine has allowed us to live longer, healthier lives, but as the average lifespan has increased, dementia has become a more prevalent problem. Alzheimer’s is the leading cause of dementia, afflicting one in eight adults over the age of 65. One out of two persons over the age of 85 has this disease. Alzheimer’s disease impairs memory, problem solving and planning skills, and judgment. At some point, the Alzheimer’s patient may lose the legal capacity to create or revise an estate planning document. We have taken on many cases in Florida and have successfully set aside testamentary instruments procured while a decedent lacked capacity because of Alzheimer’s Disease and dementia.
Undue influence is a legal theory that can be employed against a substantial beneficiary that maintained a confidential relationship with a testator. Undue influence can be proved by circumstantial evidence and the presence in the case of a grouping of factors. Such factors include, but are not limited to, the following: selection by the beneficiary of the attorney drafting the will, transporting the testator to the attorney’s offices, communication with the attorney, the presence of the beneficiary at the time the will was discussed, the presence of the beneficiary at the time the will was executed, transportation of the testator from the attorney’s office, taking possession of the will by the beneficiary, and concealment of the will after it was executed. These factors suggest an unusual involvement by the beneficiary in the decedent’s affairs and the likelihood of the exercise of undue influence by the beneficiary against the decedent.
Florida law requires that a testator have the testamentary capacity to create a valid will. A person lacks testamentary capacity if, at the time the will is executed, he or she does not have sufficient mental capacity to understand the nature of the testamentary act, understand the nature of his or her property, and remember and understand his or her relationships to family members and those whose interests are affected by the will. Whether or not a testator had sufficient capacity to create a valid will is a question dependent on the facts of each case.
A person who has experienced short-term memory loss, as often occurs early in the progression of Alzheimer’s, may be susceptible to undue influence, as persons suffering from Alzheimer’s or another form of dementia are often unable to resist the influence of others.
Alzheimer’s cases involve a complex interplay of legal, factual, and emotional issues. With over three decades of experience, firm principal Peter A. Cohen has the knowledge, experience and advocacy skill necessary to successfully resolve your will contest or probate dispute. For a consultation, contact Peter A. Cohen, P.A.