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.

Chicago

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 SeniorityMatters.com, a local caregiver advisory and referral service for South Florida seniors and their families. You can contact her at nancy@ senioritymatters.com.

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