MORE WILL CONTESTS, continued

More Elderly Clients Live Alone

Another aspect of clients' increased mobility that portends an increase in Will contests, is that more adult children now live thousand of miles from their aging parents, who are more likely today than ever before to live alone in the care of or dependent upon non-family members. The combination of adult children unable to stay in constant touch with their parent(s) and more elders with substantial assets being vulnerable to strangers will result in more claims that the elder was the subject of undue influence -- the second of three most common grounds for a Will contest. Here, the allegation is that the Will does not reflect the testator’s wishes because a third party coerced or dominated the testator to subordinate the testator’s depository intent to that of the third party. To guard against a potential Will contest on the grounds of undue influence by an unscrupulous interloper and to ensure that the wishes expressed are the elder’s, the lawyer should always meet alone with the elder when another person makes the appointment or brings the elder into the office. Alternatively, if the elder has sound reasons to disinherit children in favor of a caretaker, close friend, or charity, precautions include interviewing the client thoroughly before drafting and again before execution and documenting your file in detail, having a witness who is neither related to the client nor a beneficiary witness the interview, and signing the same document twice over a several-month or several-year interval.

More Unusual Bequests

Elderly clients with substantial wealth who live alone ? even if they have children -- may wish to make rational large bequests to or for their pets, caretakers, or favorite charity -- to anyone who has faithfully befriended them in their children’s absence. When the attorney determines that a client with testamentary capacity wishes to disinherit and/or make an unusual bequest, the drafter’s file should be carefully documented with proof of capacity and justification. Pari ratione, using more than the required number of witnesses -- all younger than the testator -- can further impede contestants and ensure that the elder’s wishes are followed.

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