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What if Testamentary Capacity is Questioned?

By Juan C. Antúnez on December 28, 2004
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If the client has already been diagnosed as suffering from diminished capacity, but the estate planning attorney is confident the client has the requisite mental capacity to execute a testamentary instrument under Florida law, then in addition to other efforts focused on documenting the client’s current mental capacity, it may be helpful to explicitly address the issue in the document. For example:

Because I have been diagnosed as having senile dementia, probable Alzheimer’s, I recognize that some persons who will be disappointed with the provisions of my testamentary plan may question my capacity and may consider challenging the validity of this instrument. However, my illness has not progressed to the point that my judgment and thinking about my assets, my loved ones and my estate plan have been materially impaired. I have given very careful consideration to my testamentary affairs, and I affirm that the dispositions made in this instrument reflect my decisions, which I have carefully and unequivocally reach after deliberation and after seeking the advice and counsel of my attorney PERRY MASON, who has prepared this instrument at my direction. My attorney and I are initialing here, ________ (testator), _________ (attorney), to reflect my attention to and understanding of this paragraph.

Photo of Juan C. Antúnez Juan C. Antúnez

Mr. Antúnez is a Florida native. Prior to law school Mr. Antúnez volunteered for service with the United States Marine Corps Reserve, 4th ANGLICO, West Palm Beach, Florida (1987-1993), including combat operations during the First Gulf War (1990-91). Mr. Antúnez has practiced law…

Mr. Antúnez is a Florida native. Prior to law school Mr. Antúnez volunteered for service with the United States Marine Corps Reserve, 4th ANGLICO, West Palm Beach, Florida (1987-1993), including combat operations during the First Gulf War (1990-91). Mr. Antúnez has practiced law in Florida since 1996. Trusts and estates litigation, probate administration and estate planning is all he does as a lawyer. Mr. Antúnez is the author and publisher of the Florida Probate & Trust Litigation Blog, co-author of the Florida probate chapter of International Succession, published by Oxford University Press, and sole author of the Florida chapter of ADR and Trusts: an international guide to arbitration and mediation of trust disputes, published by Spiramus Press. Mr. Antúnez has previously served as an adjunct law professor for the LL.M. in Estate Planning program at the University of Miami School of Law, and frequently lectures at continuing legal education seminars for professional groups on areas related to trusts and estates. Read More…


Education

LL.M. in Estate Planning, University of Miami School of Law, Miami, Florida, 2003

J.D., New York University School of Law, New York, New York, 1996

B.A., Finance, Florida International University, College of Business, Miami, Florida, 1992

Jurisdictions Admitted to Practice

Florida, 1996

Admissions

All Florida state courts

U.S. Court of Appeals for the Eleventh Circuit

U.S. District Court, Middle District of Florida

U.S. District Court, Northern District of Florida

U.S. District Court, Southern District of Florida

Professional & Bar Association Memberships

Florida Bar

Member: Real Property, Probate and Trust Law Section

Member: Elder Law Section

Member: International Law Section

Military Service

4th ANGLICO, United States Marine Corps Reserve, West Palm Beach, Florida, 1987-1993

Honors: Combat Action Ribbon, Kuwaiti Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal, Army Commendation Medal, Meritorious Unit Citation

Read more about Juan C. AntúnezEmailJuan C.'s Linkedin Profile
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  • Posted in:
    Trusts, Estates and Elder
  • Blog:
    Florida Probate & Trust Litigation Blog
  • Organization:
    Stokes McMillan Antúnez Martinez-Lejarza P.A.
  • Article: View Original Source

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