The Client with Questionable Capacity

I frequently get calls from lawyers who have been asked to draft testamentary documents for elderly clients who are struggling with serious and sometimes terminal physical health issues and/or questionable cognitive abilities or dementia. Many times, the lawyer has been contacted by a child, spouse, or other family member of the prospective client. These scenarios present serious ethical issues and potential malpractice concerns for the lawyers who have been asked for assistance.

An attorney who believes that a client lacks capacity may not draft and oversee the execution of a will for that client. But capacity is not always clear. A person suffering from some form of dementia may have sufficient capacity to execute a valid will. A person might also lack capacity on one day but have sufficient lucidity on another day to execute testamentary documents. When presented with situations where testamentary capacity is questionable, there are steps that a lawyer can take to protect herself.

1. Speak with the client outside the presence of any other party. If a family member brings the client to the appointment, make it clear to the family member that you represent the client’s interests and not the family member’s interests. Do not rely on the family member’s opinion about the client’s capacity. Explain to the family member that you need to speak with the client without the family member being present.
2. Ask enough questions to satisfy yourself that the client meets the requirements for testamentary capacity. A person has testamentary capacity if he (1) comprehends the natural objects of his bounty, (2) understands the kind, nature and extent of his property, (3) knows the manner in which he desires his act to take effect and (4) realizes the effect his act will have upon his estate.
3. If you have any doubts or questions about the client’s capacity, require the client to undergo a mental capacity examination by a medical professional. You can refuse to accept the representation if the client is unwilling to undergo such an examination.
4. Do not be pressured into acting without satisfying yourself that the client has capacity and is not being unduly influenced. You have the right to decline the representation. Often, family members will come in expressing a sense of urgency and desperation and pressuring lawyers to act quickly. If this happens, put the brakes on.
5. Follow the same procedure for every will execution. If you are ever called to testify in a later caveat proceeding or other litigation, you might not remember the specific details of that execution, but you will be able to testify as to your standard practice for every will execution.
6. Take extensive notes of your conversation with the client. This is especially true where you suspect that the will might later be challenged.

Even if you take all of these precautions and more, there might still be a will contest down the road. If you have followed the steps above, you will have protected yourself. By asking the capacity questions and satisfying yourself as to the four requirements for capacity, you have fulfilled your duty. The standard of care does not require you to know with certainty whether a testator has capacity.