"Boilerplate" provisions in a contract, will, or other legal documents are sections of apparently routine, standard language. The term comes from an old method of printing. Today, "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed. A layperson should beware that the party supplying the boilerplate form usually has developed
How many families do you know who fought over the settlement of their Mom and Dad’s estate? In my experience, these family feuds are often over things – not money. Who gets the sterling flatware and who gets the drop-leaf table are points of contention that rip apart the family fabric.
Mom and Dad, why…
When your client owns property in foregin countries, estate planning and tax issues can be complex. This is an excellent article discussing inheritance in the European Union nations centering on the issue of forced heirship. It is a concept strange to Americans who strongly believe they have a right to disinherit their children.
I love this post from Gerry Beyers’ Wills, Trust and Estates Prof Blog:
It reminds me of the Jewish Halachic Will which utilizes exactly the same methodology: the testator getting his way by using his will to impose a legally enforceable severe financial penalty for not following…
Writing your will is not a do-it-yourself project.
Words are important. The words that are in your will are very important. That is one of the reasons you should not try to write your own will. Even preprinted forms and computer programs can lead to problems. Take the case of Mr. Tate, recently decided…
In a decision filed April 17, 2008, the Pennsylvania Superior Court turned what we know about wills and joint property on its head. In In re Estate of Amelia J. Piet, the court ruled that joint accounts did not pass to the surviving joint owner because the accounts were made joint after the execution …
Growing Old and Issues of Diminished Capacity
The law assumes that adult individuals have mental capacity, that is, they are capable of making rational decisions on their own behalf. Note we say they are “capable” of making rational decisions. The law doesn’t expect or require that they actually make rational decisions. Competent individuals of all ages, old and young, have the right to make foolish, eccentric or idiosyncratic decisions. For better or worse, all of us are free to make bad decisions.
A persons’s capacity may change from day to day (or even during the day), depending on the course of the illness, fatigue and the effects of medication. Some folks have good days and bad days. Some are more alert in the morning; some have their best time in the afternoon. Legal competency is not something that a person either has or doesn’t have –it can be quite variable.
Whether or not a person is legally competent depends on the purpose for which the capacity is being determined. The law provides a different standard of competency for 1) making contracts, 2) making wills, 3) having a guardian appointed, 4) and giving informed consent to medical treatment.
Whether or not a person is competent is a legal determination, not a medical one. Medical testimony is important, and is always sought by a court in making the determination of capacity. Since the law has many different defined standards depending on the action being taken, the determination of whether or not a person is competent to do a certain thing is always a legal decision.
What surprises most people is that the capacity to make a will, called testamentary capacity, is the lowest level of capacity in the law. All that is required is that the person making the will (1) understand in a general away, the nature of his property, (2) knows who are the “natural objects of his bounty,” that is, the persons who would normally be his heirs, and (3) must be able to comprehend that he or she is making a will.
A person who has had a stroke, or is diagnosed with Alzheimer’s disease, may still have sufficient capacity to make a will even though there is some impairment of speech, some impairment of thought processes, and/or some physical impairment. The fact that a client does not know the year or the name of the President does not necessarily mean that she can not make a will. Since signing a will does not require a great deal of capacity, the fact that the next day the person does not remember the signing of a will does not invalidate the will if he had the minimum required capacity the day before when he signed it.
We usually think of a person’s will as a financial document used to make sure his or her estate is distributed according to his or her wishes. The will can also be used as a constructive tool or a destructive weapon to reach other goals, which often do not involve money.
Eddy M. Elmer, in…