Last month’s article addressed what happens when someone calls our law office  to advise that a third person ( typically a parent, grandparent or other older relative)  “needs” to do a Will.  We have to explain that the person who “needs” the Will has to be the one tells us that and has to be the sole determiner of who gets what.  No helpful nudges and reminders from others are permitted.  A person either has the mental capacity to understand the process in making a Will and clearly knows what he or she wants or they do not. No one else is permitted to exercise that judgment for them.

Sometimes, however, it isn’t just a question of mental capacity to understand what they are doing.  Sometimes, an older person knows what they want but feels under pressure or compelled to do what someone else wants.  As an example, imagine that a parent has three adult children only one of which is local.  And imagine that the parent often depends upon that local child to do certain things for them – laundry, cooking, and transportation to doctors for example.  Now imagine that child is pressing for the parent to leave them a disproportionate share (or perhaps even all) of their estate. It’s easy to see why the parent might feel under duress or pressure to do so.  They may be thinking: I really want to treat each of my children equally but if I do so, will this child stop driving me to my appointments; shopping for me?  Will this child continue to do anything for me?

If the parent succumbs to this pressure and makes gifts in the will for which the local child has lobbied, they may be setting up their estate for a family feud.  The other children might not view the uneven shares as fair even though the local child may have been doing much more for the parent than his/her siblings. Furthermore, the other family members may be able to challenge the very validity of the Will itself, claiming that the deceased made the Will “under duress” and not of their own free will.Challenges by family members to the validity of a Will are obviously things attorneys want  to avoid.  We want to make sure that the person is making estate planning decisions on their own without pressure from third parties. How do we do that?  First, we meet with the person whose Will we are going to be preparing in private and alone with no third parties present. Frequently, a child or other family member with an interest in the person’s estate has brought the client to our office.  In that event, we often hear, “It’s OK if I come in with [Mom, Grandma, etc].  She wants me to come in with her, isn’t that right?” Our answer is:  “No; sorry. You can’t come in.  In fact, why don’t you go shopping across the street or down the street for a Starbucks while I meet with Mom?”  We also have in our sitting area a brochure prepared by the American Bar Association titled “Why Am I Left in the Waiting Room” which covers this very issue and which we give to the non-client family member in case they think we are excluding them from the meeting for no good reason.

Second, while meeting with the client alone and in private, we spend some time going over the client’s family situation in depth: how many children do they have and what are their names? Where do those children live?  How often does the client see them/when did they last see them?  If they don’t drive, how do they get to doctor appointments, grocery shopping etc?  We ask them to describe their children: are they married? Does the client like the childrens’ spouses?  What do their children do for a living? Do they have any health problems?  Do they get along with each other? These are just some of the things that are covered in our discussion with the client.  Often toward the end of our meeting the client will be able to better articulate what they want to have happen to their estate after they are gone and why. And this is exactly what we are hoping will happen: the client expressing his/her wishes independently and without any pressure from an interested party who might have “a dog in the fight”.

If our desired outcome does not occur and the client appears to be unsure of the assets they own and to whom they wish to leave their assets or otherwise seems to still feel compelled to do what one of their children is asking that they do even though it’s not what they really want, we simply will not prepare a will for them.

So, no, you cannot tell us what another wants in their Will nor can you force someone to prepare a valid Will. And no, you cannot come into the conference room or otherwise participate in the client’s decision-making process.  This task belongs to the client alone and only if they are able and willing to do it independently. It’s nothing personal, it’s just the law.