Week 3 Discussion

Testator’s Capacity

What is your role as a paralegal in an estate planning practice? Competence is something that must be determined at the time a will is signed, but whose responsibility is it to do this? Be careful with “unsound” mind. What about a person who has some periods of competence? The answers here may not be as absolute as one may first think.

As a paralegal, if you are asked to witness a will, you should make your judgment of the testator’s capacity at the time of the execution of the will. If the testator lacks capacity, you should not sign the will. Based on this information, answer the following questions:

What objective and subjective signs will a paralegal consider when deciding whether it appeared that a testator had or lacked sufficient testamentary capacity to execute a will?

What will you do if you were being directed by your supervising attorney to witness a will for a testator who appeared to lack testamentary capacity?

Can an attorney prepare and draft a will for a client who is of unsound mind?

Examine this issue of the testator’s capacity at the time of preparing and executing/drafting the will. Justify your ideas and responses by using appropriate examples and references from Lexis Advance (including primary sources such as cases, statutes, rules, regulations, etc.), government Web sites, peer-reviewed legal periodicals (not lawyer blogs), which can be supplemented by law dictionaries or the textbook. This means you need to use more than just your text and legal dictionaries.

2. Supervision of Will Execution

Estate planning is planning for death, and that is a difficult thing for many people to do. Therefore, how we react with folks coming to an estate-planning attorney’s office is critical.

After a Will is drafted and finalized, it must be properly signed and witnessed. Should the drafting attorney need to be present for the signing, or could a paralegal who “specializes” in this area be allowed to supervise?

What procedures would you use to put a new client at ease to elicit confidential familial and financial information for preparing legal documents, such as a will? What personality factors of the client could you consider while determining your approach?

Case law and statutes governing the proper execution of a will exist in every state. At least one state prohibits non-lawyers from supervising the execution of a will. A few states allow non-lawyers to supervise the execution of a will. Which position do you support and why? Should a non-lawyer/paralegal with 20 years’ experience in the estate-planning field be allowed to supervise will execution?

Justify your ideas and responses by using appropriate examples and references from Lexis Advance (including primary sources such as cases, statutes, rules, regulations, etc.), government Web sites, peer-reviewed legal periodicals (not lawyer blogs), which can be supplemented by law dictionaries or the textbook. This means you need to use more than just your text and legal dictionaries.

Submission Details:

Post your response to the Discussion Area by the due date assigned. Respond to at least two posts by the end of the week.

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