02/09/2013 12:15 EST | Updated 04/11/2013 05:12 EDT

The Delicate Art of Changing a Will

As people are living longer, the amount of wealth in the hands of the elderly is increasing. The number of people making changes to their wills or estate plans later in life is increasing as well. These trends are set to continue over the next several decades. The legal profession needs to be on guard for signs of vulnerability to failing mental health and to undue influence in order to protect our aging clients from exploitation, and their estates from future litigation.

When meeting with a client about a change to a will or an estate plan, lawyers must first determine whether or not the client is capable of giving instructions. In this episode of Hull & Hull TV, we discuss the importance of assessing your client's capacity, how to undertake this delicate step in a client meeting, and how to spot signs of incapacity or undue influence.

Capacity is always an uncomfortable subject to raise with a client. It can be difficult to really explore with a person whether they truly understand the instructions that they are giving well enough to meet the legal tests involved. Legal definitions of capacity differ from medical ones, and differ from activity to activity. In order to make a valid will, a client must meet the classic test for capacity in Banks v. Goodfellow, which essentially asks whether the person knows and understands the nature and effect of his or her dispositions, including what his or her assets and liabilities may be, where those assets will flow under the estate plan, and whether the client has considered the people one might expect them to consider when preparing a will.

Though medical conditions can certainly affect a person's capacity, the test is not strictly a medical one and a full and proper assessment of a client's capacity can be very challenging. Individuals suffering from mental illness may often have their social graces, and can superficially appear to be fully alert, attentive, and conversational.

A careful lawyer should ask open-ended questions. Have the individual explain the estate plan and the reasons behind it in his or her own words. Checklists and other tools may be very helpful in ensuring that nothing is left out, but must be supplemented with careful probative questioning about anything that seems out of order. Always take careful notes of all meetings or conversations with the client.

Tragically, the elderly may become vulnerable to undue influence or threats of coercion from individuals seeking to exploit them. A lawyer meeting with a client about a will or estate plan must be on guard for this as well.

One red flag is when an a friend or relative of the client arranges the meeting or brings the client to the lawyer's office. Always ensure that when meeting with a client, no third parties are in the room when taking instructions or assessing capacity. Take care to explore with the client who may be influencing their testamentary decisions, and ensure that the advice and influence of people in the client's life has not crossed the line from supportive advice to coercive undue influence.

As the population ages, the number of challenges to estate plans based on testamentary capacity or undue influence is increasing. Taking careful steps to assess capacity, asking the right questions, and properly recording them, are part of a lawyer's professional and ethical obligations to their client. But lawyers must go beyond this to ensure that the end result is that we competently achieve what the client is trying to accomplish with a well-prepared and well-documented will or estate plan.

*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.