How We Prepare a Will that Protects Your Interests

The technical work needed to prepare a valid Will is only part of what we do to protect your interests. We provide personal attention and care for each client. To prepare a Will, we take the time to:

• become knowledgeable about the existence and identity of the client’s relatives
• understand the client's finances and property ownership
• discuss the client's intentions
• take special precautions if the client is of advanced age and/or has a medical condition or impairment

For elder clients, we make sure that competency to make a Will is establish and confirmed. This protects the client, and family members, from potential challenges to the Will. The article Assessing Clients with Diminished Capacity explains how elder law attorneys take steps to optimize the capacity of a client by:

1. Conducting a private interview, to insure that the client feels free to express his/her true feelings, wishes and concerns
2. Optimizing the client's capacity, by scheduling the meeting at a time when the client is most alert, and not fatigued. An elder's capacity can be enhanced by a law office that is accessible, comfortable, well lit, and quiet with a minimum of distractions.
3. Taking time to understand the client's values and standards, so that what is important to the client is clearly expressed in the Will and other documents.
4. Starting the attorney-client relationship with the presumption that the client has the capacity to freely exercise his/her own judgment.
   

In the 2011 case of Paine v. Sullivan, the Massachusetts Appeals Court Appeals Court explained how attorneys must make sure that the client understands what is written in the document, knows the natural objects of his bounty, has a general understanding of his finances, and is not suffering from any ailment that might influence his dispositions.

As an elder law attorney, I am often called by people who want to express their intentions in a will, trust or power of attorney document during times when they are in facing difficult circumstances with their health. These situations require special care and attention. What can be done to protect people who desire to make changes to wills and trust during difficult times? In deciding the Paine v. Sullivan case, the Appeals Court judges looked back on some recent cases, and gave some examples of how the attorney protects the client's intentions:

• attorney prepared simple, one-page instrument, met with testator, and just prior to execution summarized each article and put the practical effect in simple layman's language
• attorney met with testator in hospital, hand-wrote will according to testator's instructions, and read the will to her in front of witnesses; testator agreed it reflected her wishes before executing it; attorney followed up with formal will and trust and repeated reading and execution formalities
• attorney spoke with testator in rehabilitation hospital by telephone and took him through the changes of his second trust amendment, which testator confirmed; testator made additional changes later that day; attorney met with testator at rehabilitation hospital and went through amendment again; testator made additional change and initialed change in the margin and at all times demonstrated to attorney that he knew what he was doing and did not show any confusion.
  

Compare this care and attention with the circumstances in Paine v. Sullivan. The case illustrates how costly and heart breaking litigation can result when documents are prepared and signed without the active involvement of an estate planning attorney. Read more about the Paine v. Sullivan case: Expert and attorney testimony fails to establish Mr. Sullivan's capacity to sign the will in 2004.

By taking the time to understand the unique circumstances of each client, we can protect the client from undue influence, confirm that the client has capacity, and prevent future claims that would attack the client's expressed wishes.