7 Reasons Why Estate Attorneys Examine Testamentary Capacity

You may make the mistake of disregarding testamentary capacity concerns when planning your estate—considering the issue as just another boring legal prerequisite you have to follow before drafting, modifying or executing your will or trust.
Your estate planning attorney however understands that verifying your mental capacity and documenting your comprehension and appreciation of the testamentary documents you’re about to execute can make the difference between the courts accepting your will or trust into probate or revoking it during estate dispute litigation.
Let’s have a look at why probate attorneys in Iowa may assess their client’s mental competence before accepting representation.
Iowa courts compel lawyers to test for diminished capacity.
Iowa Code does not offer us a general testamentary capacity definition. The Iowa Supreme Court however laid down precedent law on the issue over sixty years ago when deciding In re Rogers’ Estate (Iowa 1951), and the judiciary has been compelling estate attorneys to follow its testing rules ever since.
According to the Rogers Court, testators may only draft, amend or execute a will or trust if they can understand:
  1. the nature of the testamentary documents—how the will or trust operates;
  2. the extent of his/her property (not the value)—what items he/she owns;
  3. the natural objects of his/her bounty—who are the heirs and beneficiaries;
  4. the distribution intent and its effect—who inherits and who does not.
The aging population and mental impairment illnesses are rising concurrently.
Within the next fifteen years, older adults in America will outnumber children for the first time in history, according to the US Census Bureau. People today are just living longer and that means estate attorneys should expect to encounter more will drafting activity coming from testators age 65 and older moving forward.
The Alzheimer’s Association has meanwhile predicted that over thirty percent of seniors will pass away with dementia or some other mental impairment illness this year, and by 2050, over 15 million Americans will be living with Alzheimer’s disease.
These two projections alone infer that probate litigators may bring more will challenges with age-related diminished capacity claims in the immediate future. Estate attorneys must therefore make extra sure that today’s older clients hold absolute capacity to plan their estates to fend off potential conflicts later.
Attorneys hold fiduciary duties to evaluate a testator’s mental competence.
Lawyers normally owe fiduciary duties only to their clients. Estate law however is unique in that attorneys may also owe legal obligations to third-party intended beneficiaries under the will.
The Supreme Court of Iowa has consistently relaxed non-privy standing for legal malpractice or tortious interference with expected inheritance claims against estate attorneys when their negligent diminished capacity testing affects a third party’s inheritance.
This does not mean the courts expect attorneys to make qualified medical assessments of their clients’ mental capacity during testamentary document pre-drafting consultations, but the judiciary does require estate planners to put forth diligent and good faith efforts to access whether the testator’s testamentary capacity complies with the Roger’s Doctrine before accepting representation.
Lack of testamentary capacity is difficult to establish with the naked eye.
Even when attorneys are on visual alert for diminished capacity signs during client meetings, they may miss important indications showing the testator does not hold the legal requisite to plan his/her estate.
Lawyers therefore must carefully administer standardized assessments that evaluate their client’s cognitive, emotional and behavioral standing before drafting and executing estate plans.
  1. Cognitive Tests. Evaluates and documents the client’s communication efficiency; memory strength; decision-making ability; simple math skills; and mental clarity and concentration.
  1. Emotional Tests. Explores the testator’s general mood and probes for signs of anxiety, temper changes or fear.
  1. Behavioral Tests. May include assessment of probable dementia or psychotic illnesses or lack of personal care issues (hygiene, nutrition).
Clients may appear mentally incompetent at face but further inquiry shows they possess testamentary capacity.
Lawyers may not assume that testators lack testamentary capacity to plan their estate just because they notice odd or bizarre behavior during consultation. Seasoned estate attorneys understand that mitigating factors beyond their client’s unique or eccentric conduct may explain his/her socially disconnected appearance.
Clients may be suffering from depression of which would not necessarily disqualify them from executing a will or trust. They may also be grieving a loved one’s passing or be experiencing side effects from medications.
Certain diets or dehydration may further cause temporary behavioral changes. Seniors likewise are often mentally fatigued, experience vision or hearing loss or may have lost their ability to read or speak efficiently—shortcomings that do not preclude them from legally drafting, altering or executing their testamentary documents.
Ethic rules require lawyers to conduct diminished capacity evaluations and to solicit third party testing when necessary.  
Rule 1.4 of the Model Rules of Professional Conduct obliges attorneys to assess their clients’ capacity to make legal decisions before providing them with services. This ethical duty especially applies to estate lawyers who draft testamentary documents that will touch heirs and beneficiaries decades after a testator executes them.
According to the American Bar Association’s guidelines, lawyers may reach four likely outcomes when testing for diminished capacity:
  1. Zero or Minimal Evidence. A result where attorneys may continue planning their client’s estate.
  1. Slight Evidence. Counselors must decide on whether to proceed with counsel or seek a third party assessment.
  1. Substantial Evidence. Here, estate attorneys must proceed with diminished capacity suspicion and seek a medical professional’s opinion before moving forward.
  1. Severe Evidence. Lawyers should discontinue counsel and withdraw from the representation.
Interested parties regularly contest a testator’s testamentary capacity.
Heirs and beneficiaries will almost surely bring estate dispute litigation when medical evidence reveals the testator was mentally incapable of executing the estate planning documents presented in probate.
The courts on the other hand will assume the deceased held testamentary capacity unless a challenger can overcome the burden of proving with clear and convincing evidence that diminished capacity existed.
During will contest discovery, defendants likewise subpoena attorneys to produce a copy of the testator’s estate planning file, pre-drafting notes, standardized test performed and any other evidence that can confirm the decedent held a sound mind while alive.
Attorneys must therefore zealously examine each client’s cognitive strength to make sound decisions during estate planning and archive the results, since the courts may need them to present their findings decades later.
The above list shows us why attorneys must test for diminished capacity among older or disabled clients before planning their estates. The aging population is growing—a trend that carries a potential boost in estate dispute litigation and legal malpractice lawsuits moving forward.
So don’t become upset if your attorney asks you to take cognitive tests or sends you to a third-party assessment before drafting your will or trust. In the end, it’s much better to be safe now than sorry later when the courts refuse to let your testamentary documents enter probate, wouldn’t you agree?

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