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Probate practitioners can expect a substantial increase in the number of will contests as baby boomers — generally defined as those of us born between 1946 and 1962 — become heirs. Demographers and economists predict that we will see the largest intergenerational wealth transfer in history as the parents of baby boomers die and pass their assets to their children. And that will mean a lot of lawsuits. Fortunately, this wave doesn’t have to hit us unprepared. Practitioners can take steps to avoid being snared in the contest of wills that we’ve drafted. MORE WEALTHY PARENTS There are actually several reasons why we’ll be seeing more contests by disgruntled heirs claiming that they didn’t get “their share.” First is the amount of money involved. Many baby boomers’ parents are “children of the Depression”: They saw harsh economic times and, as a result, grew thrifty and content to live well below their means. They worked hard, lived modestly, and saved . . . and saved . . . and saved. Whether they made steady investments in simple vehicles like U.S. savings bonds or life insurance, whether they now own vastly appreciated real estate or long-term investments in the stock market, these parents lived modestly as their wealth accumulated. As they die and pass their large estates to their children, more wealth will translate into more will contests because will contests are all about — and only about — money. Second, as a result of advances in medical science, the fastest-growing age segment of American society are people 85 and older. But while medical science has improved the quantity of life, it has not been quite as successful in preserving the quality of life. Even before Alzheimer’s and other forms of dementia were as common as they are today, lack of testamentary capacity was one of the most common grounds for will contests. At the moment of execution of the will, the testator must have sufficient mind and memory to do three things: (1) He must understand the nature of the task of making a will as shown by the ability to create a rational plan for the use of his property after his death (e.g., “I give my house to my son, who has always lived with me and cared for me during my old age, and who has never had any other home; I give my business to my daughter, who has never wanted to work anywhere else and has always shown great interest in it and love for it.”). (2) He must recall generally what property he owns. And (3) he must recollect the relative claims of persons who would be “the natural objects of his bounty” and the duties he owes to his family members — “claims” and “duties” in the sense of leaving property to legatees in some rational proportion to the amount of love, affection, and attention they showed the testator during his life (“I know he’s my son, but . . . he’s never been there for me.”). Guarding against claims of lack of testamentary capacity requires the probate lawyer to become skilled at assessing mental capacity. Initially, the lawyer must recognize where capacity is likely to become an issue: Is the client suffering the early stages of Alzheimer’s? Disinheriting “the natural objects of his bounty”? Making an unusually large bequest to a cat? Then, the lawyer must determine the extent of precautionary steps to take: Should she informally administer the Mini-Mental Status Examination or some other test of capacity (e.g., asking the client to draw a clock with the time at 10:15 or to spell “world” backward)? Or should she schedule an expensive battery of neurological tests? Or videotape the will execution? Experienced estate planners know, for example, that videotaping can be a two-edged sword if the attorney is asked under cross-examination how many takes were made before securing the final videotape or why taping was felt to be necessary in the first place. The lawyer’s assessment of mental capacity may be complicated by an educated or sophisticated client deft at camouflaging his diminishing mental capacity. For example, a client asked about his age may disguise memory loss by answering, “Why I’m old enough to be your father.” This author’s experience with elders is that loss of mental capacity is much more frightening than loss of physical capacity, especially for individuals who were once impressively sharp thinkers. Often, well-educated, sophisticated elders are frightened into self-denial at the signs of their own diminishing mental capacity. Once they can no longer deny it to themselves, they may still struggle to hide it from family, friends, and others. The lawyer who suspects that lack of capacity is being hidden must pursue a mental assessment even if it’s very painful for the client, who should be told that the assessment is necessary to ensure that his testamentary wishes are fulfilled. Sometimes several sessions with the client or a follow-up phone call the next day may be necessary to assess long-term memory or consistency in dispository wishes. Sessions with these clients must be patient, rather than rushed or strictly timed. MORE ELDERLY ALONE Another source of uncertainty that encourages later will contests is the fact that fewer clients have long-term relationships with their lawyers. Probate lawyers practicing in the D.C. metropolitan region are challenged by clients constantly entering and leaving the area to attend school, take military assignments, work for the government, etc. As a result of this increased mobility, it’s not unusual to be asked to draft a will for a client whom the lawyer has never met before (“Mom just moved to this area and wants to update her will.”). Precautions to protect the will of a new elderly client from attack include asking the client to talk about (a) family members, to ensure that the elder knows “the natural objects of their bounty,” and (b) the estate’s assets, to ensure that she knows generally what she owns. The lawyer may routinely ask to see a new client’s previous wills in order to recognize drastic changes in bequests or beneficiaries and thus to obtain rational explanations for them. The lawyer may also wish to preserve previous wills in case a contestant successfully invalidates the last will because of defects in execution — another common ground for will contests. As a precaution against this type of attack, wills should include an attestation clause that brings with it a presumption of due execution. The lawyer should also habitually follow formal execution procedures. For instance, always ask, “Is this your will? Have you read it?” If a newer will is later rejected because of defects in execution and the previous will is intact, the doctrine of dependent relative revocation may apply to unrevoke the previous will. Another aspect of clients’ increased mobility that portends an increase in will contests is the fact that more adult children now live thousands of miles away from their aging parents. The elderly are more likely today than ever before to live alone, in the care of or dependent upon nonfamily members. The combination of adult children not in constant touch with their parents and more elders with substantial assets vulnerable to strangers will result in more claims that the elder was the subject of undue influence — yet another common ground for will contests. Here, the allegation is that the will does not reflect the testator’s wishes because a third party coerced or dominated the testator to subordinate his dispository intent to that of the third party. To guard against a potential will contest on the grounds of undue influence by an unscrupulous interloper and to ensure that the wishes expressed are the elder’s, the lawyer should always meet alone with the elder when another person makes the appointment or brings the elder into the office. Of course, elderly clients with substantial wealth who live alone — even if they have children — may legitimately wish to make large bequests to or for their pets, caretakers, favorite charity, or, indeed, anyone who has faithfully befriended them in their children’s absence. Having determined that a client with testamentary capacity wishes to disinherit and/or make an unusual bequest, the attorney can take steps to protect those wishes. The drafter’s file should be carefully documented with proof of capacity and justification. Interview the client thoroughly before drafting and again before execution. Ask a witness who is neither related to the client nor a beneficiary to witness those interviews. Ask the client to sign the same document twice over a several-month or several-year interval. Use more than the required number of witnesses (and make sure that they’re all younger than the testator). MORE PRECAUTIONARY STEPS Revocable living trusts.In addition to the tips provided above, the use of a revocable living trust, rather than a will, can reduce the risk of future disagreement in a contentious family situation where privacy of the disposing documents outweighs the additional costs of a trust. Nonprobate assets.Retitling of assets now to make them jointly owned, to create life estates, or to make assets subject to a designated beneficiary may be advisable where the possible contest would notbe coming from a surviving spouse. In cases involving spouses, pre- or post-nuptial agreements are urged. Other options.The testator can send disinherited heirs a check on the same day that the will is executed, thereby making it difficult for the heirs to claim later that the testator on that day had the capacity to make a completed gift but not to execute a will. Some attorneys advise involving children in the elder’s estate plan to avoid surprises, but this, like videotaping, can be a two-edged sword. Use of an in terroremclause along with a bequest substantial enough to halt the potential contestant may also be an option. It’s important to remember that will contests are not necessarily brought by greedy, undeserving children. Some are, indeed, valid and serve the purpose of undoing fraud, forgery, and other criminal schemes, as well as the rare case of short-sighted attorneys who draft wills for new clients at a third party’s request or provide wills via mail to clients they’ve never met personally. Nonetheless, there are a number of precautions that probate lawyers can take to decrease the likelihood of contests over legitimate wills. The most important is to be alert to the many pitfalls awaiting the unwary drafter. Agnes C. Powell is an attorney in Greenbelt, Md., specializing in estate planning and tax law. She can be reached at [email protected].

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