Use Checklists to prevent a Will Dispute
Use Checklists to prevent a Will Dispute
Among the easiest steps that the estate planning attorney may take to try and prevent a will he drafted from being challenged is to achieve the witnesses towards the will use a listing to create a documented record they observed the testator had sufficient testamentary capacity.
First some background: for a will to become valid, the individual executing the desire (frequently known as the “testator”) should have “testamentary capacity” (which, in many states, is understood to be the sufficient mental capability to know his family, his property, the truth that he’s creating a will, and just how the desire gets rid of his property).
An issue can arise when an estate planning attorney asks his paralegals, staff people, varieties for everyone as witnesses to some will the estate planning attorney reasonably believes might be contested. Usually, the paralegals, staff people, varieties won’t pay as near focus on those things and speech from the testator because the estate planning attorney (whether since the witnesses routinely witness lots of wills because they’re less acquainted with the testator because the attorney because they’re unaware the will might be contested, or if they’re, because they’re unaware of how serious this type of challenge might be simply because they tight on of the emotional and financial commitment within the matter, etc). The issue arises when individuals witnesses will be requested to recall – in depositions or at trial – the conditions all around the will signing, as well as their recollections tend to be more hazy compared to the estate planning attorney who also observed the signing. Since the time-frame from the will signing towards the date of depositions inside a will contest situation ranges from several weeks to years, it isn’t hard to observe how a paralegal that has observed countless wills within the interval would be unable to recall much else concerning the will signing at trouble in the litigation. Certainly, the witnesses will more often than not testify they observed the testator had testamentary capacity during the time of the desire signing (otherwise they will not have observed the desire), but occasionally, the witnesses cannot remember any in addition to that fundamental fact. At trial, the lawyer for that will contestant will pounce on the truth that the witnesses remember little concerning the conditions from the will execution.
Because of this, estate planning attorneys should produce a listing for that other witnesses to make use of in the signing associated with a will they reasonably believe may finish up being contested. The listing should contain:
(i) the specific witness,
(ii) the date from the signing,
(iii) time from the signing,
(iv) the position of the signing,
(v) the addresses and names of people present in the signing, and
(mire) a summary of the 4 elements needed for testamentary capacity, together with boxes for checkmarks alongside all of individuals elements.
The important thing area of the listing may be the four elements needed for testamentary capacity (the wording that will vary slightly from condition to condition, but which generally could be summarized because the testator demonstrating he comprehended: (i) his family people, (ii) his property, (iii) he was creating a will, and (iv) the way the will discarded his property).
By getting the witnesses execute this listing, in case they’re deposed several weeks or years later, they can make use of the listing to jog their recollections regarding the details and conditions from the will signing. Furthermore, the significance from the event is going to be underscored through the unusual practice of requiring to accomplish the listing, that will further actually boost the witnesses’ recollections. By having the ability to testify in their depositions (and also at trial if required) in depth concerning the details and conditions from the will signing, the witnesses will seem a lot more credible to some judge or jury when compared with when they simply testified they understood the testator had capacity, but tend to not recall any information regarding the signing. Furthermore, the listing itself will function as a valuable bit of evidence at trial to show to some judge or jury that safeguards were taken through the estate planning attorney during the time of the signing from the will to make sure that the testator had testamentary capacity.