Competing Standards for Testamentary Capacity: Lucid Interval Standard v. Clear and Convincing Evidence Standard


Testamentary Capacity is the legal term of art used to describe a person’s legal and mental ability to make or alter a valid will or a power of attorney. There are currently two standards used for determining whether someone has capacity.

Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1998) discusses the “lucid interval” standard of testamentary capacity. The Court held that:

“To 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.”

The Court in Raimi went on to explain that “an insane individual or one who exhibits “queer conduct” may execute a valid will as long as it is done during a lucid interval.

In Mimi Rescue Mission, Inc. v. Roberts, 943 So.2d 274, 31 Fla. L. Weekly D2979 (Fla. 3d DCA Nov 29, 2006) the Court relied on the “clear and convincing” standard, which looks at the testator’s general health and mental wellbeing in the days leading up to the will signing. This standard is facts specific. The Court made its finding based on testimony of the neurologist, and also based on the deterioration of the decedent’s mental condition days before her death.

What is left unsaid is which standard the Court will utilize in subsequent cases.

It appears that the clear and convincing standard would be easier to satisfy, if we can show serious enough facts leading up to the last days of the decedent’s death. These facts would indicate a deterioration in decedent’s general health and mental condition, which is what the standard requires. On the contrary, the lucid interval standard seems very hard to meet if the decedent’s mental health significantly deteriorates days before passing. This standard is more difficult to meet because it is hard to show a lucid moments if the decedent shows a deterioration in his or her general and mental condition.