Submitted by Anonymous on Sat, 12/19/2009 - 13:29
Posted in
My dad is talking about executing a new will because he says he wants to leave my brother out of his inheritance. Frankly, my dad really doesn't have that much to leave to anyone (an estate with a total value of about $20,000). I'm happy to help him do the will (my brother really has not been there for my dad) but I'm not really sure about his mental capacity anymore. He has good days, but sometimes he is really our of it. How do I know if he can do a will, and if I take him to a lawyer, how will the lawyer react?
Editor's Response
Hard for me to answer that question for you, because I don't know your Dad and have never seen him. However, under Massachusetts law, for a person to have testamentary capacity they must--AT THE TIME THEY EXECUTE THE WILL--be able to understand the nature of the document they are signing. In other words, they must know they are signing a will. They must also be able to understand the nature of their property (what they own, what it is worth, where it is located), and be able to understand who their potential heirs are. The burden of proof belongs to the person opposing the will. So, if your brother decided to challenge the will after you father passed, he would have the burden of proving that your dad lacked mental capacity.
As for How the lawyer would react, again, having never met your father, I cannot say. Hopefully an attorney who practices in this area of the law will add his or her insights to this thread. Generally, if the attorney meets your father and does not believe that he has testemtary capacity, then he or she should not participate in the creating of a new will. Beyond that. I can tell you what Rule 1.14 of the Massachusetts Rules of Professional Conduct says:
(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) If a lawyer reasonably believes that a client has become incompetent or that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may take the following action. The lawyer may consult family members, adult protective agencies, or other individuals or entities that have authority to protect the client, and, if it reasonably appears necessary, the lawyer may seek the appointment of a guardian ad litem, conservator, or a guardian, as the case may be. The lawyer may consult only those individuals or entities reasonably necessary to protect the client’s interests and may not consult any individual or entity that the lawyer believes, after reasonable inquiry, will act in a fashion adverse to the interests of the client. In taking any of these actions the lawyer may disclose confidential information of the client only to the extent necessary to protect the client’s interests.
I hope all that information is helpful. For more information or to post a question, visit our MA Elder Law Discussion Forum.