Will Advice?

Question

Hi

My mother is terminally ill, and her memory is better some days than others.

She does not wish her husband (our step-father) to inherit her money. Therefore she needs to get a will sorted.

I take it that as her memory is poor a home will is probably now out of the question - am I right?

Also, with such a poor memory if she wrote a will with a solicitor, would this stand without being contested by her husband?

Any advice would be great!

Answer 1

The standard for competency to write a Will is low. Your mother needs to know who her family is and have a general idea of the nature and extent of her property. You need to get this prepared and wait until she having a good day and have it signed before 2 witnesses and notorarized. I am a U.S. attonrey, but since our laws on this issue are taken from the English Statute of Wills, I believe British laws are the same. She does not have to be competent all the time, only when she signs the Will. It should specifically state she does not want your step-father to inherit.

Answer 2

First of all, a wife cannot disinherit her husband. The husband can elect against the will and receive basically what his intestate share of the estate would have been.

A person must have testamentary capacity in order to make a will. The situation you have described is "iffy." Because of her mental and physical health, anything done should be done with a good lawyer. You run the risk of a possible will contest if mom lacks testamentary capacity.

Testamentary capacity is measured as of the date a will is signed. There are certain test questions that a lawyer will ask a person to determine whether he or she has testamentary capacity. It is said that one can have testamentary capacity "during a lucid moment."

I know many Pennsylvania probate attorneys who will not "push the envelope" as regards to the testamentary capacity. If a person is under the care of a doctor, they will consult with the doctor; and if the person is in a nursing care facility, they will consult with the staff at the facility to make sure that the person actually has testamentary capacity. A will has more credibility if the physician is actually one of the subscribing witnesses. Just one warning, however, in many hospitals and nursing facilities, employees often refuse to witness such legal documents because it is "against policy."

There is a potential ethical question. Who is arranging for the attorney to prepare the will? Is it you or your mother? An attorney has to be careful that he is working for the proper client.