Attorneys who routinely assist clients with estate planning matters know that the execution of wills and trusts is generally straightforward. Cases rarely present issues at the outset that are indicative of future litigation. Still, practitioners should be mindful of factors that could affect the validity of the instruments they draft and help their clients execute to maximize the likelihood that an executed document will be upheld if its legality is ever challenged.
In addition to consistently employing a basic execution routine—ensuring that the client has read and understands the will or trust document, agrees with it, and is signing it voluntarily—additional safeguards aimed at preventing litigation may be employed depending on the situation. The following practices are aimed at preventing a challenge to the estate plan or, if an estate plan is challenged, successfully defending the plan and the testator’s intentions.
If capacity is a concern, make sure that the testator fully understands his estate plan at the time of document execution. Have the testator identify his heirs and property and explain the desired result of his estate plan. If the property distribution seems unusual, ask about it to make sure the client understands the distribution and who’s being left out. Multiple meetings with a client provide reference points that will allow an attorney to better gauge the client’s capacity.
2. Undue Influence
Make sure that the estate plan reflects the desires of the testator and not someone else. Be on alert if the same individual always accompanies the testator and if that individual tries to direct or marshal the process. Have conversations with the testator alone. Ask the testator about others’ involvement and input in the estate-planning process. Don’t have unnecessary people present when documents are executed.
3. Modifications or Disinheritance
If the client is modifying an existing estate plan in a manner that appears to be unusual or is disinheriting certain individuals, ask about his reasons for doing so. Advise the client on the potential risks posed by disinheriting family members. Encourage the client to openly discuss the estate plan with his family.
4. Second Marriages
Be aware of issues raised by second marriages. The dynamic between a current spouse and children from a previous marriage frequently results in litigation. Advise the client about the interplay of these issues and interests. If the client wants to provide for family members disproportionately, thoroughly explore the reasons for doing so.
5. Quality Witnesses
Make sure the witnesses to the execution of the will and trust documents are prepared to assess the client’s capacity and to identify concerns regarding undue influence. Provide an outline of the relevant factors and things to watch for during the will or trust execution. Make sure the witnesses converse with the client so they’ll be prepared to say something meaningful about the client’s comprehension.
6. Family Tree
Have the client draw a family tree. A client’s ability to do so without prompting provides evidence that the client understands his relationship to the people who might reasonably be expected to be the objects of his or her bounty.
Consult a physician. The opinion of a physician may serve as evidence of the client’s capacity. The client’s regular physician is a likely witness in a will contest, especially if the client suffers from medical conditions that could affect his cognition. Review the local rules of professional conduct before consulting a doctor or other third party regarding your representation.
8. Mental Evaluation
Conduct a mini mental status evaluation. Some practitioners will ask a series of questions designed to assist in determining whether sufficient capacity exists. What’s the date today? Who’s the President of the United States? Others may prefer to try to elicit the same type of information in a more casual and conversational style.
Videotape the execution of the will and trust documents. Videos have proved useful as evidence of the decedent’s capacity in a handful of reported cases. But this approach isn’t without risk. Being on camera could cause a client to speak or behave in ways that are inconsistent with what’s normal for him. If the client doesn’t perform well, the video may be used as evidence of incapacity.
10. No-Contest Clause
Consider a no-contest clause. The enforceability of such clauses varies by state. Even in states that don’t enforce such provisions or that limit enforcement, such a clause may be useful in deterring will and trust contests in cases where the testator clearly has capacity.
Fully document your conversations and practices. Your notes will be crucial to assist you in accurately recalling details or should you be unable to testify as a witness. Have the witnesses to a will or trust execution do the same. If the client is making any unusual or disproportionate dispositions, consider documenting the client’s reasons for the disposition in the will or trust itself, with the client’s permission.
Many of these suggested practices entail risks that will need to be balanced in determining what set of best practices is most appropriate for you and your clients. In developing best practices for a document execution protocol, you should also be cognizant of the fact that your actions could create additional concerns, particularly with respect to capacity issues. Deviations from best practices or an established protocol might suggest that you were concerned about the testator’s capacity. You can minimize these by implementing a policy by which certain practices are used only in certain circumstances.
While no single will and trust execution protocol will be appropriate for every case or client, a good protocol will allow for some degree of flexibility. A prepared attorney should recognize the limitations of his routine and be armed to adapt to the situation as required by the facts presented by a given client. The practices suggested should provide an ample arsenal of options to mitigate the risk of a successful will or trust contest.
Reprinted with permission. The original article appears at:
The articles on our Website include some of the publications and papers authored by our attorneys, both before and after they joined our firm. The content of these articles should not be taken as legal advice.