It is commonplace for a person to propose and execute documents to create an estate plan in New York. Recent posts in this blog have talked about various planning papers including a Last Will and Testament, Living Will, Living Trust and Power of Attorney. In view of today’s online capacity, many individuals consider and actually write and execute their own papers without guidance from an attorney. The New York Probate Lawyer Blog has recently talked about the possible issues that many arise from such a process.
An additional consideration regarding the execution of any Will or other document is the level of capacity or competency that the creator has when preparing and signing papers that have significant legal consequence.
A recent article written by Roxanna E. Hammett on March 26, 2020 entitled “The Estate Planning Attorney’s Role in Establishing Testamentary Capacity” and published at www.law.com/njlawjournal/2020/03/26, raises some interesting issues. While the article relates to New Jersey law, the overall subject is applicable to New York Wills and the Probate Process.
In New York, a person who executes a Will must be determined to have testamentary capacity. As defined by our Courts, testamentary capacity generally requires that a person know the contents of his Will, know the natural objects of his bounty (his family), and have an understanding of his assets. There is no absolute test and each case is viewed based upon the unique facts involved.
Capacity is significant for the validity of a Will. This is especially important since the document may be the subject of a Will Contest. In the above article, it is noted that dementia is a growing problem in the older adult population. When an individual meets with an attorney to prepare an estate plan or any other legal document, the individual should be able to exhibit the capacity to understand and appreciate the actions he is undertaking. While executing a Will requires less capacity than an ordinary contract, it is still essential that the testator have the ability to formulate and understand his intentions. The attorney who is drafting and supervising the execution of papers ordinarily makes an informal assessment of capacity during interactions with the client.
The article provides suggestions for the attorney to consider including the exclusion of third parties, such as family members or friends, from estate consultations. This may eliminate any overriding influence and facilitate an attorney’s ability to assess a client’s independent intentions and capabilities. Additionally, if it appears that a person is suffering from some cognitive deficits, there may be good reasons to postpone or cease the preparation or finalization of papers since the proposed documents could significantly alter a person’s planning.
It has been my experience that an in-person meeting and discussion with a client is the most effective way to discuss matters such as the legal effect of a Will or Trust, beneficiary designations, executor and trustee nominations and the probate process. Also, having a Will execution ceremony in my office with the testator attending along with the attesting witnesses and a notary for a self-proving Will affidavit creates an atmosphere of importance and focus regarding the terms set out in the Will. Such a ceremony allows the testator to read and confirm the Will provisions for an additional time and even to change them before finalization.
When an estate plan is properly prepared, it limits the possibility of estate litigation such as a Contested Will or construction of ambiguous provisions. Also, the possibility of challenges to a Will may be dealt with through a no-contest clause or other planning strategy. I have represented clients with planning and settling estates for over 40 years. Call me now for a free review of your estate, trust or Guardianship issue. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to Guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.