A recent study illustrates the underlying problem. It was found that the average time between clients coming to a lawyer for the purpose of having an estate plan created and actually signing the documents was close to three years. And this is despite the fact that the documents were prepared and ready to sign within two or three months. Put simply, the average person delays signing the operative documents for years even though the documents are ready and already paid for.
The answer in many cases is a subconscious refusal to consider death and its ramifications. Modern Americans do not enjoy discussing and planning for death. Past cultures, including our own, had death as a central part of the family and life experience. “Front parlors” were called that precisely because that is where the family placed the body of the loved one for viewing by friends and family. Only in the early twentieth century did commercial “funeral parlors” replace front parlors in the home and that was indicative of an increasing reluctance on the part of our society to consider death as something both inevitable and something to be prepared for years in advance.
While the role of death in our youth-oriented society can be a subject of long discussion, for the purposes of this article the underlying point is that even intelligent and mature individuals often delay executing the documents or even creating the plan until circumstances give them no choice. Often it is illness or an upcoming serious surgery that finally compel people to do the estate planning that good sense and family dynamics require.
And, at times, that planning, and execution of documents comes even later, literally as the person is dying or feels close to death, often disoriented and weak from pain and medication. Those are often termed “death bed” wills or trusts and give host to a whole series of problems discussed in this article.
The Basic Issues:
- HASTE MAKES WASTE: Any good estate planner will tell the client that proper planning requires a thorough review of all the assets, the family situation, the current method of holding property, the current tax situation and likely tax effect of death, as well as proper consideration of various contingencies that may arise before death that could alter the plan. The most difficult aspect of good estate planning is the analysis of the assets and family needs of the person creating the plan and in most cases a trust rather than a will is the best and most efficient method of passing assets to the next generation. A trust instead of a will may save tens of thousands of dollars in probate costs.
If called upon to draft a document in days or hours, the proper analysis of assets and understanding of family dynamics is likely impossible. A trust is usually a document dozens of pages in length that must have assets actually transferred into the trust to be effective. That is a process normally taking weeks, sometimes months if real estate in other locales is involved. Thus, if one only has hours or a day or two to create the plan, trusts are usually discarded as a realistic tool. A will becomes the only possible alternative.
If the person creating the plan is ill or facing imminent death, their state of mind is such that the asset details and long discussion of family dynamics is unlikely. Since family members are interested parties and may disagree on what the plan should be, the attorney must depend on the person signing the will for instructions, not the relatives clustered about and that person may be incapable of the type of careful discussion and planning required or may be so distraught and emotional that clear thinking is unlikely.
It is hard to describe the tension and emotion that surrounds a person in the hospital when the lawyer is present, family huddled close by, death a very real possibility, and the lawyer must advise the family to leave the room so that he or she can obtain instruction without influence of the other family members. It is not an atmosphere that helps the family, yet it is required for the attorney to avoid the issue of later claims of “undue influence” being made once the will is filed for probate. That danger is discussed further below.
Put simply, one would not purchase an automobile at the last minute when ill, or a home in a few hours. Estate planning often involves millions of dollars in assets and hundreds of thousands in possible taxes and probate costs…one should not expect a good plan to be developed in such trying circumstances.
- UNDUE INFLUENCE DANGERS: As discussed in detail in our article on Undue Influence, if an interested person can demonstrate that the testator was subject to inappropriate influence or control by an heir or any other person then the will can be invalidated. A typical claim is that grandpa was going to give money equally to all the grandkids but one of the grandkids, while the rest were out of the room, pushed grandpa to leave it all to him by lying to grandpa about what the other grandkids were saying and grandpa changed his will accordingly.
When the testator is ill, disoriented, under the influence of medications and emotional, it is much easier to influence them, thus a last-minute estate plan is a prime target for those who seek to void a will.
- UNSOUND MIND DANGERS: Another common attack by those seeking to void a will is that the testator was not of sound mind when creating the will, either due to age, medication, illness or injury. This is often combined with an attack based upon undue influence and, again, when close to death or on medication, it can be difficult to contest such a claim.
- EMOTIONAL CONDITION OF TESTATOR: Engaging in estate planning is both difficult and can be emotionally draining. When already ill or medicated, it can be a tremendous burden for the dying person, a person who already is facing the traumatic issue of oncoming death. Such a mental condition can mitigate against calm and careful planning and ability to handle the demands of relatives and friends. One person dying represented by the writer wanted to disinherit his son who was, himself, incapable of seeing his father in such a condition and was distraught in the next room, not wanting to see his father “full of tubes.” Squabbles between family members at the hospital can lead to emotional outbursts by the testator who uses the inheritance to punish and reward those in the family.
Equally likely, the testator will forget what assets he or she owns or what promises have been made to what family members. It is not uncommon for the testator to want one plan but awakening two hours later, will want a different plan. Estate planning under such circumstances can never be accomplished with the type of reasoning and calm consideration required.
- FAMILY DYNAMICS: It is not just the testator who is emotionally distraught but the entire family. Mutual suspicion and resentment is easily developed as family members see certain members of the family spend time alone in the room with the ill parent or relative and come out with wills or lists of assets and there is almost always one or more members of the family that will claim that while others were mourning and supporting the dying person, the person inheriting was only trying to profit.
Ideally, the family is never put into a situation in which the last-minute planning is required, and this means that estate planning is begun before it is critically necessary. It means that once the documents are completed, they are promptly executed and, in the case of trusts, the relevant assets are transferred into the trust. As one client wrote the writer, it means being adult about death. She wrote, “I have a responsibility not to leave chaos behind me when I die, to take responsibility for the futures and emotional well being of my family. If that makes me a little uncomfortable now, well I went through childbirth and that was far more uncomfortable.”
Assuming that advance planning is not made, then there is a protocol that should be followed in drafting and executing the last minute will.
- The attorney with a witness from the office should meet with the testator alone, with relatives not present, to make sure the testator is of sound mind and not being pressured and has fully considered all aspects of his or her assets, tax ramifications and family needs. The attorney should bluntly ask what medications the person is on, whether she or he is up to the task, and should consult with his or her medical professionals to ensure that the testator can truly make a valid will. If the person is too confused to go through such a complete analysis, the attorney should at least make sure the will provisions are understood by the testator and that he or she understands who gets what.
- The attorney should arrange to video tape the interview with the testator so that it is clear to later persons that the questions were asked, that the person was free to make her or his own choices and that sound mind existed. That same video professional should be present for the execution of the documents.
- The attorney should have a series of questions to ask the testator to make sure he or she feels fully comfortable with the proposed plan and that no one has influenced the person incorrectly.
- The attorney should be given authority to have assistants make sure that all deeds, bank accounts and other assets are accounted for and that the testator is aware of all that she or he owns. This can often be done by telephone or the internet if time is of the essence.
- The witnesses to the will should not be family members or heirs if at all possible.
- Unless the doctor can state unequivocally that the person is of sound mind no will should be made. That statement should be made on the video as well.
- Only if the person is in danger of immediate death should the above procedures not be followed and, in that case, the opinion of the doctor and the examination, before video if possible, should still be made.
- The attorney should not reveal the contents of the will to family members unless specifically requested to do so by the testator.
Creating a plan at the last minute not only requires speed but requires understanding of the common attacks that can be expected upon such a rushed effort. It means that as much time is spent anticipating the likely attacks as drafting the documents. It means handling the emotional reactions of family members gathered there as well as the person facing possible imminent death. It is a tremendous challenge for the legal professional and success means that the goals of the testator are met without danger of litigation or a family that is at war with itself.
As challenging as “death bed” will preparation is, it is still preferable to dying without a will (dying “intestate”) which is rigid in where the bequests must go, has no tax or asset planning, and can lead to disputes as to who is appointed to administer the will. Even a rushed effort at drafting is usually much better than leaving it to the law to determine who will inherit what.
That said, such last-minute planning invites later hurt feelings and family disputes which could be avoided if even there was a few weeks to properly prepare the plans.
The lesson is clear: do it early and sign it early. If you cannot do that, select an attorney who knows how best to avoid the bitter and prolonged family probate battles that can often develop from last minute wills.