This article was originally published in the March 20, 2024 edition of the New Hampshire Bar News
You are on the witness stand in the Probate Court in a will or trust contest, your right hand raised as you get sworn in, readying to testify about a will or trust you prepared decades ago. Your paralegals or administrative support team who attested to your client’s signature have little-to-no memory or, worse, have long retired or moved away, leaving you as the sole witness who can speak to the client’s affect, knowledge of their wealth and relatives, and intent to carry out the document’s dispositional scheme. Are you up for the challenge?
The drafting attorney is almost always the most critical witness in will or trust contests. The risk that you might someday have to take the stand to defend a will or trust you drafted is increasing. People live longer, get divorced more, and have more wealth. Based upon my experience in these cases, I offer the following tips to help you avoid joining me in court or, if a challenge is unavoidable, at least make it a bit less nerve-wracking:
You will likely see it coming. Will and trust contests are predictable. Experienced estate planners know that probate litigation is often driven by family pathology, and that there can be rivalries or resentments between a client’s subsequent spouse and children, or among the children. The more dysfunctional the family, the more unequal the treatment, and the more wealth at stake, the more you should manage the estate planning carefully to avoid a potential future contest.
Be on the lookout for someone taking advantage. Meet with the client without other family members present. This is basic, good practice, but is not always followed. Where an elderly client is highly dependent on a child, such as for food, shelter, transportation, or assistance in making appointments, you should insulate your communications with the client from this dependent relationship by meeting alone with the client. I also recommend sending any mail to the client marked “Personal and Confidential.”
Assess for capacity by asking open-ended questions. It is likely that, by the time you first meet with the client, you will already have substantial information about their finances, family, and affairs. Nevertheless, to help assess capacity, you should ask them open-ended questions and evaluate their responses. For example, you could ask: “What are the names and ages of your children?” “What do you have for wealth?” “What do you want your will to say?” “Why do you want your will to say this?” If it ever comes time to defend your plan, you will be thankful to have evidence of your client’s ability to articulate coherent responses.
Assess for capacity again on the day the plan is signed, perhaps on video. Will and trust execution is not the same as a real estate closing. For individuals with dementia, capacity can fluctuate. The fact that the client did well in the estate planning conference is no guaranty that they will have testamentary capacity when they sign. When you meet, ask them to remind you what the estate plan provides and why they chose this scheme —don’t give in to the temptation to prompt or cue. You should again use open-ended questions to verify that they know and understands who their relatives are, the roles they play in their life, and the nature and extent of their wealth. A video interview of the client discussing these issues can be compelling evidence — favorable or unfavorable, depending on how the interview goes.
Don’t discount a “letter of reasons.” Where your client is treating their children unequally, a letter in their own writing (whether addressed to you, a disinherited child or “To Whom It May Concern”) explaining their reasons underlying the unequal distribution scheme is good to have in your file. The unequal treatment of heirs carries an increased risk of challenge, and such a letter might help prevent its success, or even its occurrence in the first instance. If the client coherently and articulately expresses their reasons in writing, the plan will have significant protection from challenge. On the other hand, if the letter is incoherent or inarticulate, it may help invalidate your plan.
Your notes and memos are my favorite evidence. If you are anything like me, you are not able to perfectly recall every client interaction throughout your career. When it comes time to take the stand years later, you may have little present memory of your interactions with the client. Your file will not only help refresh your recollection, but will also be important evidence in its own right as contemporaneous documentation of your client’s capacity and independence. Take the time to document your interactions with your client, carefully and thoroughly.
Not all dementias are equal. Some dementias are static, while others are progressive. Often times, especially where Alzheimer’s type dementia is involved, the question is when, not whether, the client became incompetent. Your estate plan could be viewed in the context of an unrelenting mental deterioration spanning many years. It can be difficult to place the execution of your plan on that continuum.
Consider a medical consult. A physician’s report supporting capacity can be important evidence in defense of the plan. Where a challenge is based on grounds of incapacity, counsel will procure the medical records and seek to engage medical experts. A contemporaneous exam generally carries more weight than a retrospective assessment. If a consult is desired, the choice will usually be between a forensic psychiatrist, who likely has no prior history with client but is a skilled expert and witness, or the primary care physician, who knows the client well but may not be conversant with capacity standards or a good witness.
Ultimately, some of these tips are good practice and should be followed generally, while others (e.g., video recording and medical evaluations) should be employed only when it makes sense from a cost/benefit perspective — one of the “costs” being the risk that unfavorable evidence will result.