Lawyer Never Met With Client, and Will He Prepared Is Invalid

DECEMBER 2, 2002 VOLUME 10, NUMBER 22

Involving a lawyer usually helps to ensure that one’s wishes are carried out after death. As reported in last week’s Elder Law Issues, however, that is not always the result. It is important that the lawyer actually meets with and counsels the person signing a will—as is demonstrated in the case of Manival (“Doc”) Evans.

Doc Evans was eighty-nine when he was admitted to a Mississippi hospital, his cancer advanced and terminal. His close friend Madie Tinsley called attorney Marshall Sanders and told him that Mr. Evans wanted to redo his will. The attorney told her that he would not be able to meet with Mr. Evans in the hospital, and suggested that Ms. Tinsley get him a description of what Mr. Evans wanted.

Some time later Ms. Tinsley gave the attorney a description of what Mr. Evans wanted his will to say. The handwritten document, she assured him, was prepared by Mr. Evans. Based on that Mr. Sanders prepared a will for Mr. Evans.

Rather than meet with Mr. Evans to review the will, however, attorney Sanders handed the original to Ms. Tinsley, instructed her that she would need two witnesses and told her to go ahead and have Mr. Evans sign the will. Ms. Tinsley carried the original in her purse for three days, producing it for Mr. Evans’ signature while her own brother and daughter-in-law were visiting—they signed as witnesses.

When Mr. Evans died two weeks later, Ms. Tinsley offered the will for probate. It named her as the estate’s sole beneficiary, and appointed her as executrix.

Was Mr. Evans competent when he signed the will? Was he subject to undue influence by Ms. Tinsley? Did the will represent his true wishes? No one other than Ms. Tinsley may ever know. Because he never met his “client,” attorney Sanders could not testify about Mr. Evans’ competence or wishes. The handwritten instructions were no longer available (though it is not clear what happened to them). Although Mr. Evans’ doctors testified that he was surprisingly competent, given his condition, they had not discussed financial matters with him and so could not provide any insight into his ability to sign a will.

Because Ms. Tinsley had been involved in Mr. Evans’ financial affairs, because she had made the appointment with the attorney and the attorney had never met Mr. Evans, and because the fee for preparation of the will had been paid by Ms. Tinsley from her own money, the will was held to be invalid. If Mr. Evans truly intended to leave his estate to Ms. Tinsley, attorney Sanders did not help him do so. Estate of Evans, November 12, 2002.

©2017 Fleming & Curti, PLC