And About My Mom’s Will…

Like many law firms who do estate planning work, we frequently receive requests from adult children wanting to “do” estate planning for their parents. Although most of these requests are well-meaning, they can create a myriad of both legal and ethical issues. Two points to consider:

• Competency: RCW 11.12.010 states that “[a]ny person of sound mind who has attained the age of eighteen years may, by last will, devise all his or her estate, both real and personal.” By extension, that means that if one’s parent is not of sound mind, they cannot legally execute a will. What exactly meets the standard of a “sound mind?” In the case of In Re Bottger’s Estate, 129 P.2d 518 (Wash. 1942), the Washington Supreme Court found that a testator meets this standard if she is “able to understand the nature of a will, to comprehend the extent and location of her property, and to recall the natural objects of her bounty.” In other words, the person who will be executing the will understands, for example, that: (1) she is in fact signing a will; (2) the purpose of that will is to distribute property upon her death; (3) she owns a house, bank accounts, and a retirement account; and (4) her immediate family consists of her husband and two grown children. As you can see, this standard does not require that a testator to be able cite present property values and the birthdays of her fifteen grandchildren. The standard for testamentary capacity is not high. But nonetheless, it must be met. If the adult children seek to push something through that a parent may not adequately comprehend, the estate plan, even if reasonable and fair, will be invalid.
• Communications: Washington Rule of Professional Conduct (RPC) 1.6(a) sets forth a fundamental tenet of the attorney-client relationship – confidentiality. It states in part: “A lawyer shall not reveal information relating to the representation of a client.” RPC 1.14(a) further provides: “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Comment 3 provides additional guidance: “The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and . . . must to look to the client, and not family members, to make decisions on the client’s behalf (emphasis added).”

Many adult children envision a process in which they can basically tell the attorney what needs to be done, then drive their parents to the office to sign the documents. As you can see, this doesn’t work. A tricky line can exist between adult children who merely want to assist their parents, and those who seek to inappropriately assert themselves into the parents’ decision making and the attorney-client relationship. Most estate planning lawyers will want to speak directly, individually and privately with their client to confirm competency and the decisions made.