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THE TGB ELDERLAW ATTORNEY: How Wills Fail

Posted Jun 27 2012 8:30am

Orrin Onken Orrin Onken writes the twice-monthly TGB Elderlaw Attorney column in which he discusses legal issues of concern and interest to elders. He is an elderlaw attorney licensed to practice in the state of Oregon. He also keeps his own blog, Oregon Elder Law , and you can read more about his background here . All his Time Goes By columns are collected in this list .


I got a call the other day from a woman who said that her mother needed a will. I told the caller I would be pleased to help her mother do some estate planning. I asked the daughter tell her mother to call my office to set up an appointment.

The woman explained that her mother was too ill to come to my office and asked if I would come out to the house. I told her that I sometimes go to the homes of my elderly clients and that I would be pleased to discuss it when her mother called me.

My offer was not good enough. The daughter said that her mother was too ill even to call me and was relying on her to arrange everything.

When I suggested that a person who is too ill to even call me was probably too ill to do estate planning, the daughter became indignant and said said that if I wouldn't do the job then she would go on the internet to LegalZoom and do it herself. I said that was probably for the best.

Variations of this conversation happen to me a lot. I turn down these cases because I do more than write wills and trusts. I also go to court to get wills and trusts declared invalid. I know that simply getting a signature on the bottom of the document is not enough.

Wills and trusts fail for three reasons.

The most common reason wills fail is because they are not properly signed and witnessed. The rules governing the proper signing of estate plans vary from state to state and country to country. You must comply with the rules that apply in the jurisdiction where you live when you sign the document.

Lawyers don't screw this up. Do-it-yourself folks mess it up all the time.

Wills also fail because the person signing the will did not have “testamentary capacity.” That normally means the person was so disabled with dementia that he or she signed the will without understanding what it was.

It doesn't take much to have testamentary capacity. You have to be able to name your children (or the people to whom you would ordinarily leave your money). You have to be able to describe what you own. You must know that you are signing a will and you must know what effect the will will have.

It ain't much, but I have met many elders who, when taken away from the friends and family who provide them with cues and direction, cannot do it.

When I contest a will, I get to look at the files of the lawyer who wrote it. By looking at those files I find out what the lawyer did to ensure that his client had capacity. I learn who selected the lawyer and who made the appointment. I search out who came with the elder to the lawyer's office and who was in the room when the estate plan was discussed and signed.

In a will contest — a legal action in which someone is challenging the validity of a will — the lawyer's file often determines whether or not the will survives.

When I write wills, I think about the lawyer who might end up looking at my file. Depending on how frail the elder is, I write notes, dictate impressions and in particularly difficult cases, hire experts. I want more than a signature at the bottom of the document. I want a file that will hold up under examination when the client is dead.

The woman who called me about the will for her mother wasn't worried about such things. She was a free spirit. I am not.

In practice, wills written by lawyers and signed in law offices are seldom successfully challenged on the grounds that the elder did not have capacity. The lawyer's testimony about capacity will convince most judges, and no lawyer ever testifies that he wrote a will for someone who couldn't name his own children.

A will can also be invalidated if I can prove it was signed as a result of undue influence.

Briefly, undue influence is using a close personal relationship to wrongfully induce an elder to write a will or give away property. The law of undue influence varies a lot from state to state and is beyond what I can tackle in a column.

I can say, however, that undue influence never happens in the lawyer's office. It happens in the elder's home and it involves people using relationships to steal.

Nearly all undue influence cases involve unusual gifts. Most people give their estates to their children in equal shares. Childless people tend to give their money to either charity or nieces and nephews.

When a person deviates a long way from this pattern, say for example, by giving everything to the hospice nurse, lawyers are going to examine the estate plan very carefully.

If I am asked to write a will in which an elder gives large amounts to a person that just recently arrived in the elder's life, I either decline to do it or hire a whole busload of psychologists examine the elder and be ready to testify in the will contest that is almost sure to come.

The moral of this story is to not mistake the map for the territory. A signature on a document is an important piece of the picture, but so are the circumstances in which the document was signed.

Putting all your attention on the document and not paying attention to the context may leave you a with nicely signed and witnessed estate plan that isn't worth the paper it was written on.


[INVITATION: Is there an elderlaw topic you would like Orrin to discuss? Leave your suggestion in the comments below and it may turn up in a future column. Please remember, Orrin cannot advise on specific personal legal issues.]


At The Elder Storytelling Place today, Marcy Belson: A Sodium Overload

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