Posts Tagged ‘Statute of Wills’

Can a Person With Dementia Sign Legal Documents?

FEBRUARY 25, 2013 VOLUME 20 NUMBER 8
Let’s get the answer to the question out of the way first, and then we can deal with more nuance. Yes, a person with dementia may be able to sign legal documents.

The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes, “incapacity”) is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.

Capacity or competence are tested a little differently depending on what documents the person is signing. The most highly-developed law of capacity, unsurprisingly, centers on the level of understanding required to sign a will. That standard is almost universally referred to as “testamentary capacity.” Although precedent for defining testamentary capacity goes back at least to mid-sixteenth century England, the standard is occasionally restated or reformulated.

Arizona’s Supreme Court most recently reviewed testamentary capacity in 1973. In that case the Court described the woman who signed a will as:

“94 years old at the time she executed her will. She had very poor eyesight and was deaf in one ear and partially deaf in the other. As a result of previously broken hips, she used a “walker” to move around. Evidence shows that she was forgetful and did not remember the names of her great grandchildren. She spilled food when she ate and went to the bathroom frequently. She had a short attention span and it was difficult for some people to talk with her.”

The Court goes on to describe the three-part test for capacity to sign a will. A signer must have:

  1. the ability to know the nature and extent of one’s property,
  2. the ability to know the natural objects of one’s bounty, and
  3. the ability to understand the nature of the testamentary act.

Estate of Vermeersch, 109 Ariz. 125 (1973).

The standard of testamentary capacity, then, is quite low. Even people suffering from delusions or hallucinations have been found to have testamentary capacity. In an earlier Arizona Supreme Court case, the signer of a will had deteriorated markedly near the end of her life (and before her will was signed):

“during the last three years of her life she became coarse and profane. The testimony is to the effect that she shrieked and screamed at all hours of the day and night. That she mistreated her brother and cursed him, although he diligently performed his tasks around the house. That she became utterly careless in her dress, took to wearing very little clothing, rarely combed her hair or bathed, and on occasion was indecently exposed in the presence of neighborhood children. She stopped taking care of her house, stopped cooking, and ate from cans, although she fed her animals and chickens better food. She affirmed a belief in the ‘power of thought’ and practiced ‘black magic.’ She thought she could cast spells on people and tried to put a hex on the family next door so they would move out. She sat in the outhouse behind her home and watched the neighbors’ children from a peephole or stalked up and down along the fence between their property, glaring and gesturing to them and sticking out her tongue, in her efforts to get them to leave. She declared that the members of a church on the corner were praying for her to die so that they could acquire her property, when in fact, according to the minister, they wanted to move to another part of town. She was suspicious of people and built a fence around her house to ‘keep my enemies out’ and hung a padlock on the gate. In the last months before her death her conversation became incoherent and her mind wandered, she was forgetful and childish, and she seemed even more quarrelsome and ill-tempered than before.”

Despite that description, the will was found to be valid because the evidence did not specifically point to any relationship between her deteriorating mental condition and the terms of her will. Estate of Stitt, 93 Ariz. 302 (1963).

In yet another Arizona case, the will of a developmentally disabled man was upheld, even though he was said to function at about the mental level of a child of 10 or 12. Estate of Teel, 14 Ariz.App 371 (1971). In that case, the court quoted a standard legal text of the time for the proposition that “testamentary capacity is not the same as the ability to transact ordinary business.” That principle is still true today.

So can a person with dementia sign a will? Yes, so long as he or she can identify family, assets, and the purpose of making a will. A diagnosis of dementia may be evidence of some limitation in those abilities, but many demented individuals — particularly those early in the dementia process — can satisfy those minimal requirements.

What about other legal documents, like contracts, powers of attorney, deeds and the like? The answers will vary depending on the type of document, the circumstances of the signing and the nature and extent of the dementing condition. We’ll talk about those issues in a future installment.

Draft Will Is Almost (But Not Quite) Admitted to Probate

SEPTEMBER 20, 2010 VOLUME 17 NUMBER 29
There is a lot of mythology, misunderstanding and just plain confusion about wills and probate. Sometimes the reported cases don’t help clarify what makes a will valid, when it is subject to challenge or even what might be a will.

The general rule is clear, and ancient. The Parliament of England adopted the Statute of Wills in 1540, and a version of its requirements can still be found in every U.S. state. One of the most important principles from the Statute of Wills: a valid will must be in writing, and must be signed by two witnesses. That is still the law in most common law jurisdictions, and it is certainly the law in Arizona.

But wait. Perhaps you have heard about “holographic” wills; they do not have to be witnessed at all. The basic rule in states which permit holographic wills (Arizona is one) is that the material provisions must be in the handwriting of the person, and signed. You can see those rules might amount to a lawyer’s field day — what are “material provisions,” and how are courts supposed to interpret the incomplete or even contradictory provisions of a handwritten document?

Then there are “nuncupative” wills. They are not permitted in Arizona at all, but some states allow them. They are oral statements of the wishes of someone on their deathbed. In states recognizing nuncupative wills, they may be limited to items of personal property like jewelry, small amounts of cash or even items with no economic value. You might (depending on which state you are living — and dying — in) be able to say “I want my dad’s pocket watch to go to Harry” but not “I want Harry to have my $100,000 T-Bill.”

The Uniform Probate Code, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and adopted in 19 states (including Arizona) provides some new ways to let people express their wishes — and, arguably, to increase legal fees in some cases. Under recent amendments to the Uniform act, a will that is unsigned or not signed properly could still be a valid document if it can be shown by clear and convincing evidence that the individual intended it to be treated as a will. We should stop a moment to point out that although Arizona adopted the Uniform Probate Code back in 1973, the more recent revisions have not been adopted. Arizona still requires all wills (except holographic wills) to be witnessed by two people.

When might the new section of the Uniform Probate Code be useful? How about the sad case of Louise Macool, who died in New Jersey in 2008?

Mrs. Macool’s husband of forty years had died just a month before she made an appointment to see her long-time lawyer. She brought along a handwritten note to tell the lawyer what she wanted. Her old will left everything to her late husband’s seven children equally (she had no children of her own, but had helped raise his children). Her note said, cryptically, “get the same as the family Macool gets — Niece — Mary Rescigno” and some other changes she wanted to discuss.

Mrs. Macool explained the note to her lawyer. She wanted to add her niece, Mary Rescigno, to her will, along with another niece. While she was still in his office, the lawyer picked up his dictation equipment and dictated a will for her review and signature. Then she left the office to go to lunch; she would make an appointment to review the will after her attorney’s staff had transcribed it and he had a chance to review it for accuracy.

Sadly, Mrs. Macool never saw the draft will. Within the hour after she left her lawyer’s office she died.

The lawyer’s staff prepared the draft will, apparently not knowing of Mrs. Macool’s death. Relying on the Uniform Probate Code language, Ms. Rescigno then asked the probate court to admit the unsigned document as Mrs. Macool’s last will.

The probate court heard a day of testimony and argument, then declined to admit the draft document as a will. The probate judge agreed that Mrs. Macool’s intent in meeting with the lawyer was to change her will to include Ms. Rescigno, but decided that some sort of signature was required on the document.

The New Jersey appellate court agreed with the result, but not the reasoning. Requiring a signature on the document would make it essentially a duplication of the holographic will provisions, ruled the appellate judges. Mrs. Macool’s draft will could be admitted to probate if she had had a chance to review it and indicate that it reflected her wishes. Her handwritten notes, meanwhile, did not amount to a holographic will — they would need her signature.

The trial judge had declined to admit the draft document to probate as Mrs. Macool’s will, but he had agreed that Ms. Rescigno’s lawyer should be paid from Mrs. Macool’s estate. New Jersey’s probate rules expressly authorize payment of attorney’s fees for someone who “had reasonable cause” for even a failed contest. Ms. Rescigno’s lawyers had submitted bills totaling $34,433; the probate judge had cited his personal “policy reasons” in reducing the fee by about 15%.

Even though her lawyers had been unsuccessful the appellate court approved of the payment to Ms. Rescigno’s counsel. In fact, they reversed the probate judge’s reduction of the claimed fees. According to the appellate court, there was no indication that the hourly rates were unreasonable our out of line with prevailing rates, or that the claimed hours were not actually worked. In Re Probate of Alleged Will of Macool, September 16, 2010.

Sixteenth Century Statute Reviewed By Colorado Courts

JANUARY 29, 2001 VOLUME 8, NUMBER 31

Under English practice before the sixteenth century there were no standardized requirements for making a valid will. Disposition of a decedent’s property was determined by each court under local rules and customs, and the actual division was therefore unpredictable.

Henry VIII approved Parliament’s “Statute of Wills” in 1540, and the law was further developed in 1677. For the first time a requirement was introduced that all wills be in writing, signed by the decedent and witnessed.

The requirement of a signed, witnessed, writing was adopted in the United States from early days and has held sway for three centuries of Anglo-American law. In a handful of other countries the requirement of witnessing has been relaxed somewhat; Israel and the provinces of Manitoba and South Australia have all permitted wills that do not meet the formal requirements if they can be proven to be the actual wishes of the decedent.

In the United States there has been a national movement to reduce the formal requirements of probate proceedings. The Uniform Probate Code, first promulgated in the early 1970s (and adopted in Arizona in 1973), has been a leading force in relaxing probate and estate planning requirements. In recent years the Uniform Probate Code has even suggested a partial return to the law before Henry VIII and the Statute of Wills.

Colorado was the first U.S. state to adopt the Uniform Probate Code’s new provision on acceptance of wills which do not meet the Statute of Wills standards. The first case testing the meaning of Colorado’s law has now been decided in that state’s courts.

The decedent’s name was Sky Dancer, and her death in December, 1997, was attributed to gunshot wounds. When police investigated they found a four-page typewritten document titled “Last Will and Testament of Sky Dancer” and a two-page affidavit stapled to the longer document. The notarized affidavit was signed by Sky Dancer and two witnesses, and acknowledged that the attached document was her will. Apparently Sky Dancer had signed the affidavit, but not the will, in front of the witnesses and notary.

If Sky Dancer’s “will” was valid, all her property would pass to her companion Lawrence Barnes. If she died without a will, all her property would pass to her mother, Laura J. Fisher. The Colorado courts were required to interpret the meaning of Colorado’s liberalization of the probate law.

Sky Dancer’s “will” was determined to be invalid. The Colorado Court of Appeals reasoned that even under the new standards there must evidence that the decedent intended a particular document to be her will, and Mr. Barnes had not produced enough evidence. Estate of Sky Dancer, October 12, 2000.

Arizona has not yet adopted the revisions to the Uniform Probate Code which would permit unwitnessed wills to be admitted in some circumstances. Even if the law changes it will be important to have two witnesses in nearly every case. While a notary is not required, it can make admission of the will to probate somewhat easier, particularly if the witnesses are unavailable after the death of the will’s signer.

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