Sandra Reed’s Life Care Planning: Holidays can be a good time to think about wills, wishes

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

The holiday season is upon us. A time for gathering together. The vision of families congregating around a food-laden table or sipping something by the fire leads me to the topic of wills.

Wills, you say, how come?

Courts Are Seeing Increase in Number of Contested Wills

As the World War II generation passes its wealth to the Baby Boomer generation, probate courts are reporting a rise in the number of contested wills. Undoubtedly, the fact that people are living into their 80s and 90s, accompanied frequently with varying degrees of diminished capacity, is a contributing factor. Some authorities speculate that the increase of blended families and those with members separated by large geographical distances also contribute to probate litigation.

The most frequent scenario for contest occurs when a decedent has executed a new will late in life changing the beneficiaries. Whether the change omits a previously named descendant or substitutes a charity for previously favored family, if Mama had been diagnosed with dementia prior to, the will is ripe for challenge.

The courts often see wills contested when one or more child is omitted from the beneficiaries. Often an omitted child contests the will by claiming that the decedent lacked capacity to make the will which excludes him or her. But diminished capacity is not always the culprit. The loneliness from isolations that so often accompanies old age can set the elderly up for exploitation by individuals, charities and, yes, sadly, even churches, who prey upon them for inclusion in the will.

No matter how large or small the estate, no family wants to face the emotional trauma of engaging in a lawsuit while recovering from the grief of the loss of a loved one. Nor do family members want to suffer the financial blow, that a will contest entails. We are not talking pennies here. Complicated will contests can cost in the neighborhood of $100,000 or more.

Holiday Season Presents Opportunity for Observing Functioning, Discussing Last Wishes

So what do family gatherings and contested wills have in common? If you are among those many families who rarely or never see the elder members of the family at other times during the year, the time spent at holidays can be an excellent time to observe cognitive and physical performance that can be evidence of decline in functioning, including the decision-making skills needed to make a valid will.

Hopefully, these holiday observations will produce the happy finding that all is right with the loved one’s cognitive abilities. If so, the warmth generated by the season could present an ideal time for approaching the subject of last wishes. If parents have not executed wills to date, it could be an appropriate time to gently nudge them into doing so while they are in control of their faculties.

Obviously, tremendous sensitivity and tact are needed in orchestrating discussion of this nature. And, realistically, some family gatherings are fraught with such tension and dissension that broaching the subject would be not only impractical but unwise. Using one’s best judgment and proceeding with caution is the rule for the holiday.

Practical Steps to Take If a Diminished Capacity is Suspected or Identified

If observation reveals signs of a problem, family members may want to schedule clinical capacity assessments through medical and psychological testing in the near future.  However, before seeking an outside evaluation, keep in mind that even professionals use judgments based upon observation as a primary tool and don’t discount conclusions from careful scrutiny by family members and trusted friends. These can often result in credible determinations.

If the judgment of a clinician or other professional is sought, and the assessment determines that the individual lacks capacity to perform specific tasks, the family can monitor the situation. Be aware that the mere fact that Mom or Dad has been found to have limited capacity or is even diagnosed with Alzheimer’s or some other form of dementia does not necessarily mean that he or she is incapable of making a will.  If the parent knows “the objects of his bounty,” (which generally means spouse and children, if any), understands approximately the amount and type of assets owned, and can comprehend that the document being signed is a will and understands what that will means, the parent has capacity to make a will.

If it is determined that the individual lacks capacity to make a will, the family can intervene, if necessary, by seeking protective measures to guard against undue influence or to otherwise avoid the creation of a will that may need to be challenged. Failing at that, the family will have, at a minimum, created evidence to dispute a will the parent created while incapacitated.

Whether the problem is identified by lay or professional estimation, the family should take some practical steps to avoid trouble.  If a caregiver, neighbor, friend, pastor or other person is becoming uncomfortably close and controlling of the elderly person, get rid of the caregiver and take steps to limit access of the others unless in the presence of reliable observers.

When an elderly person is found to lack “executive functioning” to manage financial affairs, if he or she has granted a power of attorney, invoking it can remove the problem of disastrous financial decisions. This will not effectively prevent a loved one from creating a new will. However, any attorney asked to draft a will has a duty to reach judgment, by reasonable means, as to whether or not the client has testamentary capacity.

Let us all at this season be grateful for family members one and all, whatever their level of functioning capacity may be. Happy Holidays!

Sandra W. Reed is an attorney practicing in Glen Rose. She is Of Counsel with the Elder Law firm of Katten & Benson in Fort Worth.  If you have any questions, you may contact her by phone at 254-797-0211 or by email at swreed2@yahoo.com

2 Responses to Sandra Reed’s Life Care Planning: Holidays can be a good time to think about wills, wishes

  1. Larry P. Smith Reply

    December 6, 2013 at 2:55 pm

    Sandra, an excellent article. Everything possible should be done to avoid misunderstandings, especially lawsuits, among family members who, heretofore, have enjoyed peaceful coexistance. In the case of split families who already feel friction, obviously, it can be a greater challenge.

    Parents, too, have an obligation. In addition to the will, there is another way.
    As a parent, I believe that we should initiate that process early and even pass on many possessions that are unnecessary in our later years. While this does diminish the estate and potential for disagreement, more importantly, it puts it in the hands of our chldren while they are still young enough to enjoy full benefit And, it allows us to share in and see their enjoyment.

    • Kathryn Reply

      December 10, 2013 at 8:46 am

      She’s a great columnist and resource for the community. Thanks for commenting, Larry.

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