Ask Nancy

Updating a will of an older person can be tricky


Special to the Miami Herald

Q.My brother and I are long-distance caregivers for our 88-year-old mother, but because I live closer, I do more hands-on things for her.

During my last visit my mother told us that she needed to update her will. I called an estate planning attorney and was surprised that he wouldn’t give me an appointment. He told me to ask my mom to call to make the appointment, although I told him that she specifically asked me to do this for her.

I'm trying to do as much for our mother as possible. Is this normal, or should we find another attorney?

Steven F.


A. It appears that you received sound legal advice. In most situations, a will simply has to be signed, dated and witnessed by two individuals over age 18 for a court to accept it.

If somebody challenges the will, however, and can show that the decedent did not have the capacity to know what he or she was doing at the time they signed the will — or that he or she was under “undue influence’’ from someone else — then the court may reject the will.

I spoke with Israel Sands, a trust and estates attorney in South Florida, who said, “If the will is being challenged by another heir, and it can be shown that the lawyer who drafted the will was brought into the picture by an heir under the will, in Florida there arises a legal presumption of undue influence. And then the heir who brought the lawyer to the decedent has to prove that there was no undue influence. And, as you know, it's difficult to prove a negative.”

Sands said not only would he have your mother call him directly, but that he would also ask for time alone with her when meeting to sign the will. That way he could talk to her and take notes of his conversation, which would remain in his file in the event that the will is ever challenged — and to show that your mother had full capacity and that there was no undue influence.

Nancy Stein, Ph.D., is the founder of, a local caregiver advisory and referral service for South Florida seniors and their families. You can contact her at nancy@

Read more Health stories from the Miami Herald

  • Skin Deep

    FDA warns about not using Expression as a filler

    It never ceases to amaze me how some people can take injections so lightly. Yes, they are cosmetic and non-invasive, but these treatments require the training and skill only an experienced dermatologist, plastic surgeon, facial plastic surgeon or oculoplastic surgeon possess. Every week I have at least one patient that comes to me to correct filler injected by an inexperienced or inartistic doctor.

 <span class="cutline_leadin">Staying safe: </span>Research indicates sunscreen is hurting the oceans.


    Study: Sunscreen may harm the sea life

    It’s a crowded Sunday at the 14th street section of South Beach.

 <span class="cutline_leadin">AFTER AN ACCIDENT:</span> A former paddleboard competitor and bodybuilder, Melina Cherry, who runs SUP the Workout in Coconut Grove, first tried stand-up paddleboarding after a car accident left her with a serious neck injury. She teaches students, from novice to experienced, different paddling techniques and conditioning exercises to help get them in shape.


    Indoor stand-up paddleboard class in Coconut Grove is a first

    Indoor stand-up paddleboard class teaches the proper strokes and gives you quite the workout

Miami Herald

Join the

The Miami Herald is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere on the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

The Miami Herald uses Facebook's commenting system. You need to log in with a Facebook account in order to comment. If you have questions about commenting with your Facebook account, click here.

Have a news tip? You can send it anonymously. Click here to send us your tip - or - consider joining the Public Insight Network and become a source for The Miami Herald and el Nuevo Herald.

Hide Comments

This affects comments on all stories.

Cancel OK

  • Marketplace

Today's Circulars

  • Quick Job Search

Enter Keyword(s) Enter City Select a State Select a Category