By Lane V. Erickson, Idaho Estate Planning Attorney
Over the 20-plus years that I’ve practiced as an estate planning attorney I’ve seen just about every situation you can imagine. Many of these situations include individuals on their actual deathbeds wanting to complete their estate planning, including getting their written last will and testament done. I’ve helped in many of these situations. However, I am also keenly aware that as an attorney I have to independently verify that the individual on their deathbed who is seeking to get their estate planning done, can really do it.
In my practice, I often tell my clients that I have specific goals to complete when I’m helping them with their estate planning. The first goal is that I want to accomplish exactly what my client wants to do within the bounds of the law. My additional goal is that by accomplishing the first goal, the written last will and testament will help keep peace in their family after my client passes away.
Because of these goals, I realize when I am helping a client with a death-bed last will and testament that there are two specific things that must exist, in order for their written last will and testament to be valid. In the end, I may be the best witness about whether these two things exist. The first is capacity and the second is lack of undue influence.
Capacity is a fancy legal word that lawyers used to simply say that a person understands and knows what it is they are doing. Under the law, anyone who is under the age of 18, does not have the legal capacity to create a last will and testament, or enter into a contract, or to do many other legally related things. Even when a person is over the age of 18, they may not have capacity.
An individual may have been born with handicaps or disabilities that make it so they do not have capacity regardless of their age. Additionally, a person who has legal capacity could lose that capacity during their lifetime as a result of an injury or illness such as Alzheimer’s disease, or a stroke.
As the attorney creating a person’s written last will and testament, especially when it happens on their deathbed, I have a legal responsibility to determine whether or not they have capacity. I do this a number of different ways which helps satisfy me as to whether or not the individual fully appreciates and understands what it is they are accomplishing. If I believe capacity exists, I’m happy to move forward and help my client get their deathbed last will and testament completed. However, if I do not believe the individual has capacity, I will not help them write up a last will and testament.
Lack of Undue Influence
In addition to capacity or understanding whether they know what it is they are doing, an individual must also have intent to do what they are doing. This is especially true when it comes to a death-bed last will and testament. The reason for this is that an individual who is in this circumstance is usually open to being influenced by those around them who are mainly children and grandchildren.
In order for a last will and testament to be valid, there must be no undue influence on the individual who’s creating the will. In other words, the creation of the last will and testament, and the instructions that are provided in the last will and testament, must come directly from the individual who is creating the will. They cannot be suggested, or provided by, or influenced by any outside party.
If I believe children are forcing a parent to do a written last will and testament, I ask the children to leave the room while I discuss the matter with their parent. If independently the parent describes to me what it is they want to accomplish then I’m happy to do so. However, if I believe there is any undue influence involved in the creation of a written last will and testament then I refuse to do it.
Any will could be valid, even a deathbed will, so long as the person creating it has capacity and has not been unduly influenced by any other person. Because of this, even when we’re dealing with a person on their deathbed, I often do help families and individuals complete estate planning.
If you have questions or concerns about a written last will and testament, or any aspect of estate planning, we can help.
ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU
If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email Lane Erickson directly at firstname.lastname@example.org. We will answer your questions and will help you solve your Pocatello Estate Planning problems. I have helped numerous clients create their own customized estate plans and I’m confident that I can help you too.