(A Cautionary Tale for All Readers)
By Philip Kavesh, Attorney
From time to time, we receive a panicked, frantic, emergency call that sounds something like this . . . “My parent is in the hospital (or at home and unable to travel), is near the end and wants to make (this or that) change to his or her estate plan. Please come right away and do it!”
In a Hollywood movie script, the attorney almost immediately rushes in with a document ready to sign, the parent confesses all the wrongs that he or she now, last minute, wants to make right, the document is executed and there’s a happy ending for all concerned.
Unfortunately, real life often is vastly different than what is portrayed in films and this is one of those times. Usually, our answer to the caller is something like this, “We’re sorry, but we may not be able to help you.” To which the caller irately responds . . .
“Are You Kidding? What’s the Problem?”
“Over the past 40 years, our firm has handled hundreds of these deathbed crises. Regrettably, we must inform you that there are three sets of limitations, constraints or obstacles that must be overcome - - and then necessary steps accomplished in a hurry - - in order for us to successfully make a last minute change.”
You’ll see, there’s a lot more to this last minute estate planning situation than people think. Please allow us to explain.
First, certain ethical requirements must be met. We, as attorneys, are subject to the State Bar’s Rules of Professional Conduct which require our strict loyalty to the client and the client alone. We cannot take directions from a third party, whether a child or someone else, regarding changes to be made. Even written instructions allegedly from the client require verification. We need to speak with the client directly to be sure the changes are ones he or she wants to make (as well as for us to know the reasons why and possibly discuss alternative planning options).
Second, we must take additional actions in order to help assure that any changes which may be made will later be upheld in court as valid. We, as attorneys, must determine if the client has the necessary legal capacity and is not acting under duress, coercion or the undue influence of others. Making these determinations quickly is not an easy matter and cannot be done over the phone. Even if the client wants to meet with us by video on FaceTime or Zoom, we cannot be sure the client isn't being prompted by someone else’s written notes unseen to us or pressured by the presence of others we cannot see. The concerns about possible duress, coercion or undue influence are magnified if the requested change contradicts recently signed documents or recent discussions with the client, or if the caller who wants the change made is (or will become) a beneficiary of the estate. Usually, a face-to-face, in-person meeting with the client will be required before the change is made (and afterward a second meeting is usually required in order for us to have time to draft the document, review, present and sign it, and arrange to have witnesses available to testify to the client's capacity and lack of duress, coercion or undue influence). Sometimes, even if we visit with the client, we as attorneys cannot determine with certainty that the client has the requisite capacity to make changes and we may need to get two attending physician letters stating that such capacity exists (which may add even more time to the entire process, assuming two doctors are even willing to write such a letter).
"Wait a minute. . ."
“Aren’t You Just Nitpicking Some Technical Rules
Rather Than Serving Your Client?”
No. These are real issues. When a last minute estate plan change is made, someone involved as a beneficiary is likely to feel they got the short end of the stick. Maybe that aggrieved person stands to get a smaller share of the estate, or not get it all at once or no longer will be in control as the sole Executor or Trustee. Second, there's no exact, bright-line test for incapacity, coercion or undue influence, which makes it easier for the aggrieved person to later file a contest. Third, the previous penalties in the law for unsuccessfully contesting an estate plan (such as being disinherited) have been watered down, particularly in California, so the aggrieved person faces little downside in bringing a contest. And, finally, most lawsuits, even when not well supported by the facts, result in some monetary settlement because the sued party - - the estate and, effectively, its other, legitimate beneficiaries - - have to factor in all the delays, headaches, and potential legal fees that will be involved to get the case dismissed. If you think these risks are overstated, hear this. I recently attended a State Bar meeting where the lead speaker, a trial lawyer, happily proclaimed, “Trust and estate contests are the fastest growing areas of litigation!”
If you’re our client, you have the peace of mind that we will protect and carry out your wishes, rather than allow you to be taken advantage of when you are most vulnerable. Also, by us minimizing potential contests you will pass on more of your lifetime’s hard-earned assets as you wish, as well as help preserve your family harmony.
"By the Way,
There are Other Practical Problems
When Trying to Make Last Minute Changes"
Let’s assume we are convinced that the client does in fact have legal capacity and that there is no duress, coercion or undue influence. The last minute changes may still not be able to be made if even just one of the following events occurs when we get to the hospital or the client's home with the document ready to sign (and we’ve seen every one of these happen):
- We can’t gain access to the client because of the doctor’s orders or uncooperative health care workers
- The patient is asleep or under the influence of medication, so he or she cannot adequately participate in the signing
- The patient is awake but for other reasons is unable to clearly communicate, so we cannot verify his or her capacity and wishes, as required again at the time of signing
- Unwanted third parties are present and will not leave, like the beneficiary who contacted us and stands to profit from the change
- Witnesses expected to be there don’t show
- Or, worst case, the client passes before we can properly and successfully conduct both the initial and signing meetings.
Therefore, our bottom-line answer to the caller is, “Yes, there are times when all the facts and circumstances line up right, and we may make a hospital or house visit and sign last minute changes. And we may look into your situation further to see if we can help. But we’ve found that is rarely the case.” Regrettably, that’s not exactly the answer the caller wanted. So. . .
How Can This Less than Satisfactory Result
Don’t leave your estate plan to last minute chance. Instead, come in regularly and review it with us. We recommend you do so at least once every three years, while you still have your good judgement and capacity, and there are no issues of duress, coercion or undue influence. Or, at the least, contact us before you have to go to the hospital for life-saving surgery or treatment (or need to receive hospice care at home). Preventive care, in both medicine and estate planning, is always better than leaving it to the last minute.