Assisting your clients with estate planning is a complicated task wrought with challenges both legal and client-related.

This is especially true when it comes to late-life will changes.

Lawyers need to be aware of the risks that are involved in assisting clients with their late-life will updates – and most importantly, how to reduce those risks. 

 Late-Life Will Changes: The Situation

An excellent article by Charles Ticker from The Sibling Fight tells the story of Eva Rova Barnes, a 95-year-old women living in Bremerton, Washington, who made late-life changes to her will before her passing in 2011.

These changes included leaving her substantial estate assets to her former letter carrier and recent caregiver, Michelle Velarde, instead of her family.

Ms. Barnes’ lawyer had assisted her in making these changes.

She had even signed an additional document explaining her reasons for removing her family members from her will.

Despite these precautions, the vulnerable senior’s family successfully disputed the will changes in court where some interesting factors were revealed during litigation, including:

• The caregiver, Michelle Velarde, was accused of isolating Ms. Barnes from her family by changing her phone plan to make communication difficult, among other tactics.
• A mortgage payment was made towards her caregiver’s house from Ms. Barnes’ account on the day she passed.

The Risk for Lawyers (And How to Mitigate it)

The scenario above puts lawyers at risk because of the fact that they are not capacity assessors.

If you deem your client mentally capable, but their late-life will changes are successfully disputed, you could find yourself the target of an action for negligence.

Charles Ticker recommends mitigating your risk . . .

• When a client comes to you with a request for significant late-life will changes, you are wise to act cautiously.
   
• Ask appropriate questions about the will changes, and do so without the presence of the family member, caregiver or friend that brought them to your office.
   
• If the changes your client is requesting significantly alter the inheritance of any beneficiaries, help your client draft and sign a detailed explanation of these changes.
   
• Finally, consider requiring a capacity assessment from a qualified third party upon which you can rely should your client’s mental capacity be subsequently challenged.

Charles Ticker is an estate litigator and mediator currently writing a book on sibling estate fights. He also writes a blog The Sibling Fight. His law firm website is www.tickerlaw.com.

Client-friendly resources for legal professionals are available for you on ERAssure.com, including an educational Will Preparation Guide.