In order to have a valid written Last Will and Testament (“Will”) in Indiana, the “testator” (person making the Will) needs to be at least 18 years of age (younger if in armed services), of sound mind whose signature is witnessed by 2 independent witness.
Other States may have different requirements, but Indiana Courts will accept a Will that was validly executed under the laws of another State.
Sound mind, also known as mental capacity is always an issue. Many people come in to update their estate planning, including executing a new Will, and clearly are competent and in control. On the other end of the spectrum, people have advanced dementia, insanity, or clearly do not have capacity to execute a Will. The clients in the middle are the ones that are difficult to gauge at times.
The client should know their name; who their next-of-kin are, general description of their assets and their worth, and understand what they are doing as to the estate planning process and what happens upon their death.
Sometimes it is good to refer this determination to a medical or other professional such as psychiatrist, neuropsychologist, or family doctor to state an opinion of mental capacity.
Also, mental capacity can change even within the same day. Many times, we see clients who are clear-minded and have capacity in the morning but decline as the day progresses.
Another major concern is “undue influence” by a person who can overpower the choices and will of the client. A weakened testator, due to mental or physical issues, and an unnatural change in the Will or estate plan that favors the person who appears to be influencing the terms of the Will are red flags.
An attorney must use his “spidey-sense” to determine and identify if undue influence, or coercion is a possibility, or if the attorney feels or senses that litigation or conflict could arise down the road.
Another concern I have as an attorney is that so much of estate planning can be done outside of the law office-such as life insurance beneficiary designation, payable/transfer on death (POD/TOD), and how accounts are titled which are done outside of the oversight of the attorney.
I meet with the clients separately in my discussions before the Will is drafted. The Will is witnessed in a separate room to avoid any undue influence or appearance of undue influence or coercion. Also, the attorney fee needs to be paid by the testator, not the child or beneficiary.