Fools can marry, but they cannot make a last will and testament. To state the principle more precisely, the mental capacity required to enter into a legally binding marriage is lower than the mental capacity required to execute a valid will. A frequently-cited case on point is Hoffman v. Kohns, 385 So. 2d 1064 (Fla. App. 1980). In that case, Mr. Kohns, a man in his 80′s, was “frail and feeble, disoriented at times, forgetful, sometimes hostile and irate, suspicious and paranoid.” Id. at 1066. He married his housekeeper (whom he had known for one month) on Day X. On Day X+1, the man executed a will in favor of his new wife. The District Court of Appeal of Florida, Second District, made no distinction between Mr. Kohns mental state on Day X and Day X+1. The court upheld the trial court’s finding that the will had been procured by the wife’s undue influence, but it also ruled that the evidence “was sufficient to support the court’s conclusion that Kohns was competent to marry appellee.” Id. at 1069. Thus, notwithstanding the fact that the testator had the same mental state on both days, the marriage was valid but the will was not.
In my view, the law is incorrect in concluding that the mental capacity needed to marry is lower than that needed to make a will. The decision to marry is, without question, intensely personal, but its personal nature should not in any way diminish the threshold showing of mental capacity that must be made. Marriage is a decision with significant legal consequences, especially with respect to property. Among the legal consequences of marriage is the creation of a surviving spouse’s right to an elective share of the decedent’s estate. Both marital status and the provisions of a will impact what assets will be available to whom after a decedent’s death. Absent some change in mental state, then, it is illogical to respect someone’s decision to marry on Day X and to disregard the disposition he makes in his will on Day X+1. The mental capacity necessary to enter into a legally binding marriage should be the same as the mental capacity necessary to execute a valid will.