An Approach to Due Execution of the Will
January 17, 2018 § 2 Comments
The subscribing witness has an important responsibility in connection with execution of the will. The witness’s duty is four-fold:
First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.]. Estate of Holmes, 103 So.3d 1150 at ¶ 10 (Miss. 2012).
As the attorney, you have a duty above that of the witnesses to ensure that your client, the testator, is competent to make decisions that result in a valid will.
But how do you do that?
In a recent post on the Expert Institute Blog, a geriatric psychiatrist offered a template for assessing your testator’s testamentary capacity:
1) Awareness of the situation/communicating a choice:
Can you tell me the purpose of today’s meeting?
What have you decided to do regarding your Will?
2) Factual understanding of the issues:
Can you tell me what a Will is?
Do you know or can you approximate the extent of your estate?
Who in your family may survive you?
Can you tell me in your own words what you would like to happen to your estate after you die?
3) Appreciation of likely consequences:
Do you believe that a Will is necessary? What do you believe would happen if you do not have a Will?
Can you tell me how your Will may affect your family?
How well does this Will represent your wishes?
4) Rational manipulation of information:
How did you reach your decisions when you thought about your Will?
What was important to you in reaching your decision?
What are the advantages and disadvantages of your decision?
Were there other possibilities that you considered but decided against? What were your reasons? What makes Person A a better choice as your heir than Person B?
As the blog states:
As the population ages, lawyers will increasingly need to detect intact versus impaired decision-making capacities. Lawyers can directly screen for decisional capacity … . In so doing, they rely on more than simple impressions of their clients, or on family members’ subjective, at times conflicted, views. Clients can mask their deficits and family members can misjudge the severity of those deficits, or be motivated by self-interest. Primary care physicians are often asked to determine competency, but they may not be trained to assess cognition, and their opinions may lack validity. This explains why physician competency evaluations often disagree. Unless a client’s decision-making capacities are specifically assessed, the presence or absence of those capacities cannot be presumed.
If you will conduct this inquiry in the presence of the subscribing witnesses, you can ensure that they can competently testify later if necessary about the testator’s testamentary capacity.
I suggest you make this template a form that you keep with the client’s file, including a dated note that it was discussed with the client, and including any observations. Also have the subscribing witnesses sign it. That could prove to be an invaluable aid in the event of a will contest.