In 2022, I wrote about a concept that remains just as important today: a family member or friend “cannot make an estate plan for another person any more than they could exercise for them, take their driver’s license test for them, or receive a COVID-19 booster shot on their behalf.” My post stated:
[I]f a client has testamentary capacity, that client should be able to communicate with an attorney one-on-one absent the need for any third party to be involved, with the possible exception of an independently certified interpreter due to language barriers or a hearing disability. And, regarding undue influence, if the person purportedly assisting the client is also a beneficiary of the client’s estate, this raises concerns for obvious reasons.
If the client lacks testamentary capacity, that does not mean that a third party should “do” the estate planning for them. A better approach in these circumstances would be for a third party to discuss their concerns with an elder law attorney to determine the best approach – which may include guardianship and conservatorship.
A recent case from the Third District Court of Appeals in Ohio, Estate of Johnston H. Means and Daniel J. Means v. Thomas F. Means, 2025-Ohio-2564, exemplifies this point. Johnstone Means, an elderly retired attorney, relied extensively on his son Thomas Means for daily care. Johnston’s prior estate plan treated his two sons, Thomas and Daniel (a resident of Seattle), equally. However, in 2020, Johnston executed a new Will that Thomas claimed Johnston drafted himself after consulting with a law firm.
The court ultimately revoked the 2020 Will, finding that Thomas exerted undue influence over Johnstone and embezzled his funds. Of particular interest to me is the court’s discussion regarding the interaction of Johnston and his estate planning attorneys:
Decisively, rather than confirming Johnston’s independent and uninfluenced intentions, the testimonies of [estate planning counsel] detail a pattern of Thomas controlling the engagement and flow of information with legal counsel. This absence of independent, private interaction – a step both attorneys deemed important to rule out undue influence – combined with Thomas halting the professional planning process and the eventual, secret appearance of the 2020 will containing drastic terms unknown to counsel, substantiates, rather than rebuts, the appearance of undue influence.
This case highlights a crucial truth: the testator must always communicate her desires with counsel, independently and confidentially. As I wrote in 2022, “encouraging your loved ones to engage a lawyer and complete their estate planning is a lovely gesture. But attempting to take this action for them is problematic.”
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