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Every estate planning attorney has been there.
One of your client’s children calls your office to make an appointment for his mother. That child wants to be involved in an estate planning process. According to the child, your client wants to disinherit a different child or make significant changes in the disposition of the estate.
When you meet with your client, you sense she has experienced some mental decline but you believe that mental capacity to sign a will is not an issue. Nevertheless, the hair on the back of your head stands up just a bit. The little voice in the back of your head says: “Something about this doesn’t feel right?”
Listen to that voice!
The seminal problem with this repeating situation is that most estate planning attorneys, even experienced ones, do not listen to the little voice in the back of their head. They think like planners not litigators.
They assume if they check the basic boxes for the proper execution of a will and believe their client meets the relatively low bar for testamentary capacity, everything will be fine.
It probably will not be fine. Why? Because from the moment this child calls to make an appointment for his mother, the preparation of this will is the first act of a tragedy that ends in a trial contesting the will you drafted based on lack of testamentary capacity and the exercise of undue influence.
Do not be the tragic hero in this tragedy.
If the client’s age and circumstances lend themselves to a will contest, you may not avoid the filing of a contest. What you can do is avoid unintentionally supporting a contest by using common sense. You can avoid becoming the star witness in support of the suit that contests the will you drafted.
Consider employing some simple safeguards to protect the wills you draft. Do not allow any family member to stay in the room when you talk to your client, except to help the client get in the room and to make introductions and engage in casual chit chat. Kick the family members out of the room (cordially of course). Explain to your client that you are excluding family members to protect the process.
Make a record in your notes to explain why changes to the disposition of the estate are being made or why a family member is being excluded. Quote your client’s own words to explain her testamentary intent.
Has your client been diagnosed with reduced mental capacity? If so, that does not necessarily mean she can’t sign a valid will, but it sure means you have more work to do.
Ask your client what medications she is taking. Do those medications impact mental capacity? Do any of those medications treat dementia?
If you have concerns about your client’s testamentary capacity, assist the client in obtaining a neurological assessment for the specific purpose of determining testamentary capacity. Do not obtain a one-line letter from a physician stating the client has capacity; that is not enough.
Do not send draft documents to anyone but the client. Do not send your bill to anyone but your client. Do not rely on an email to determine if your client has read the drafts or what changes your client may want to make to the drafts. You do not know who drafted that email.
Pick up the phone and talk to your client! Or better yet, meet with your client (alone) to discuss the drafts or to confirm your client is ready to sign.
Do not let your client sign the will outside your presence. By allowing your aged client to sign her will outside your presence, you are serving up a will contest on a silver platter.
When you (or your staff) supervise the will execution, ask some basic questions to form a foundation for testamentary capacity. What is the date and year? What is her address? Who is the president? Who are the client’s living and deceased children and grandchildren and what are their names? Does your client remember your name? Can she summarize the nature of her assets?
Ask if anyone is pressuring her to sign this will. For heaven’s sake, make sure she has read the document. Ask her to recite again why she is making significant changes or disinheriting an heir.
Capture the entire process in your notes. Do not videotape the will execution. Nine out of ten such videos are a disaster, because the client is nervous and unsure and the attorney creates an unfortunate record supporting lack of capacity by spoon feeding the client with self-serving questions.
If the will you drafted is contested, hire competent probate litigation counsel. Defending your own drafting and process is a horrible idea.
In short, this is not rock science. Use your head. Be smart. Be the reason your client’s will is upheld, not overturned.•
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Brian Hewitt is a partner at Lewis Wagner LLP. Opinions expressed are those of the author.
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