I guess we all could predict this fracture of union, but as a lover of love (don’t laugh) it’s sad to see. Still, there is so much to learn from these two.
We’ve all heard that Kanye’s mental state has been a topic of discussion and while I don’t have an opinion on the matter, we can certainly discuss whether he has the capacity required to establish an estate plan. (Side note: We’ve all been reading this blog long enough to know that once the divorce is final, the very next stop is updating the estate plan and those beneficiary designation forms.)
In Florida, Case law dictates that the mental capacity needed to create a last will and it’s slightly different than any other capacity requirement. This is due to the nature of the document and the desire to have people’s last wishes identified. Our society privileges the freedom to decide what to do with our stuff. In Florida, the standard to create an estate plan is “to be of sound mind”, defined as the ability to understand (1) the extent of one’s property, (2) the natural objects of one’s bounty, (3) the nature of the disposition, and (4) these matters in relation to each other. This is a very low standard.
This testamentary capacity is determined at the time the individual executes the will and the same standard is held for a trust. A Floridian who is old, physically frail, sick, suffering from failing memory or wavering judgment may not necessarily lack testamentary capacity (the capacity to create a will or trust).
There is a slightly different standard under Florida case law to determine the mental capacity to make a deed, enter into a contract, or to make a gift. For these other contracts, an individual must understand the nature, effect and significance of the transaction. This is a slightly higher capacity requirement.
Either way, I’m sure Kanye will be found to have the capacity to both divorce Kim and create a new estate plan for himself, but it sure is fun to speculate.
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