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Wednesday, 27 June 2012

THE TGB ELDERLAW ATTORNEY: How Wills Fail

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


Posted by Ronni Bennett at 05:30 AM | Permalink | Email this post

Comments

Many are the families that are permanently estranged over perceived injustices in inheritances. Did brother Bob sway/coerce Mom into leaving him the house? Was she too senile to know what she was doing, or did she always love Bob the best?

Thank you for ElderLaw on your blog. The information is helpful and inspires re-thinking of planning that's already been done.

Lasting resentments
remain because of a lack of foresight on the part of a deceased member of my family. I have tried to avoid that pitfall and have gone so far as to have my children tell me what personal possessions they would like. Along with my will I have a sheet listing those items and the person they are to go to.

I do not think that my children would resent each other for getting something they might have coveted, but, human nature being what it is, I am taking no chances.
I do not want to be the cause of any rifts between siblings.

Janice and Darlene...
What an interesting point. I know one family in which 20 years after the fact, one sibling accused the other of not distributing money from a parent evenly between them.

Twenty years later, out of nowhere, this was said, after having never indicated such beliefs in all that time.

The apology ("I was drunk; I didn't mean what I said") was, of course, unacceptable. No one makes up something like that out of whole cloth even when they are drunk.

The relationship will probably never recover.

Nice report. Elders are victimized by relatives 90% of the time. Children commit abuses nearly 50% of the time

Of all the abuses the elderly are subject to (neglect, physical, emotional, sexual), more than 1 in 10 is a victim of financial abuse (12.3%). It is a crime that affects all Americans of upwards to $10 billion a year in the form of health care, social services, investigative and legal costs, and lost income and assets; a crime that goes largely unreported and is under-prosecuted.

I gotta say, I truly admire how clearly this man can write about subjects that are usually pretty opaque. Part of it is his conversational tone, but it is more than that. Keep these columns coming, please.

Excellent, well-written concise article with good advice. Thanks!

I have no children and not much to leave to other relatives, but I am still reeling from the rift created in our family when our mother died intestate. At the very least I would like to correct some of the unfair distribution that ensued.

Very nicely stated. All too common circumstances that we in Florida also deal with on a regular basis. Thanks for sharing your wisdom and experience.

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