Do You Want Your Will Contested?
March 11, 2009
By Robert S. Meyring
Attorney at Law*
Though my client was racked with cancer and would drift off from the intravenous drip pain medication, when the time came and she was asked, she boldly answered that everyone present was gathered in her hospital room to watch her sign her Will. I stated to the assembled witnesses and family that my client had shown she had the mental capacity to sign. So she signed. My client's family then had the assurance that during her present incapacity, or at the time of her imminent passing, the family would at least have a plan in place. That was her first and last Will. She passed away eight days later.
The hospital room signing meeting took more than two hours. Typically, an attorney can conduct a proper Will signing for a married couple, in about thirty minutes. The extra one-and-a-half hours I spent with the client were to make sure everything was signed and witnessed properly. If the Will signing is not conducted properly it can lead to an invalidated will or failed plan, an ignored power of attorney, or the suspended animation of a life in a coma because the Advance Directive for Health Care was not properly witnessed.
It's a fact of life that estates lawyers regularly visit hospitals, usually to counsel and care for the sick and dying. Estates lawyering to the sick and dying ultimately helps the family and close friends of the hospitalized client.
I chose not to become a medical doctor (after earning a pre-med degree in college and after working in operating/delivery rooms as a "scrub nurse") because I did not enjoy working in a hospital. It was the pursuit of enjoyable work that led me to volunteering with the Peace Corps. It was during my years volunteering overseas that I received my calling to be a lawyer. So it's ironic that lawyering would at times take me back into the hospital to do my work.
Practicing law as an estate planning attorney is the way I will have the most beneficial effect on the greatest number of people. But being only an estates attorney is not enough to provide my clients with the great service they expect. I ask: What good is an estates attorney if they cannot defend the Will or the estate plan they drafted? That's a defenseless attorney; an oxymoron. My personal and flawed opinion is that lawyers should be able to litigate if necessary; even John Grisham, world famous Southern author and lawyer, would litigate a case now and then.
An estates attorney with courtroom experience will be able to spot and properly address the issues and reduce the chance of family litigation later. Court time is necessary when an estate creditor asserts a claim against the estate. Minimizing or eliminating the personal debt of a decedent can be done, and it will require an estates lawyer's court time and possibly some hard-nosed negotiating.
When asked, I tell people, when drafting your own Will, Trust or estate plan, there are many more ways to get it wrong, than to get it right. I encourage the determined to try to draft their own Will or to use online document services. If you get the estate plan on line, you will be getting a form document and not getting legal advice.
I have redrafted a number of such dysfunctional online estate plan form documents. Half of such documents I reviewed were fatally flawed and could easily be invalidated if contested. I look forward to the day when I am hired to contest an online created Will.
0 comments:
Post a Comment