Does ingesting medical based pot make you incapable of creating a will or trust?

Possibility of the Effect of Marijuana on Estate Planning

In the 2014 legislative session, the Florida Legislature passed the Compassionate Medical Cannabis Act of 2014, which authorizes certain physicians to prescribe low-THC cannabis for use by specified patients.  Nearly two years later, due to legal challenges, Floridians still have not been able to receive this medical treatment.  However, because the law may become effective in the near future, certain questions must be addressed, particularly questions regarding the intersection of marijuana use and testamentary capacity.

One of the legal prerequisites for making a will in Florida is that the maker (the testator) must have testamentary capacity, that is, a sound mind.  Insofar as lack of testamentary capacity is one of the grounds frequently used to challenge the making and execution of a last will and testament, the testator’s testamentary capacity may be called into question if he or she had been prescribed medical marijuana and had, in fact, taken medical marijuana during any aspect of the preparation or execution of the subject will.

The effect of the use of “mind-altering” substances has been reviewed by Florida courts, including the will challenge in the Florida Second District Court of Appeal case In re Coles’ Estate, 205 So. 2d 554 (Fla. 2d DCA 1968).  Three days before Mildred Cole died, she became a member of the Holy Trinity Lutheran Church after its pastor began visiting Ms. Cole in the hospital.  While Ms. Cole devised 95.00% of her estate to the church in a will executed in the days before her death, the court found that, because Ms. Cole signed her will on the same morning she was injected with pain-reducing narcotics, she lacked the requisite testamentary capacity and, as a result, revoked the probate of the will.

Experts will undoubtedly continue to debate the effects of marijuana use, which has generally been found to have a sedative, euphoric effect in small doses, but, in larger, long-term doses, marijuana use may indeed impair the user’s ability to efficiently process information.  As such, estate planning attorneys should, at a minimum, be aware of a client’s marijuana use in and around the time that estate planning documents are being planned, prepared and, most importantly, executed.  In fact, it may be beneficial to question a client on his or her frequency of marijuana use and, based upon the answer, schedule the execution of the client’s estate planning documents at a time when you are comfortable that the client is not under the influence of marijuana, or some other drug that could potentially negatively impact a client’s cognitive functioning.

Those interested in learning more about testamentary capacity, including the implications of mind-altering substances on someone’s testamentary capacity, should not hesitate to contact the experienced attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist you with your estate planning, guardianship and probate litigation needs.