If you are in the process of having a Last Will and Testament drafted, or you are assisting a family member in having a Will created on their behalf, you should heed the following advice in an attempt to avoid potential future disputes. It is not uncommon for a party who might receive an unequal share under a Will, or have been entirely excluded, to seek to challenge a Will based upon numerous different grounds.
One of the grounds upon which the validity of a Will may be attacked is if the Will was not created and executed by disinterested counsel. In general, this means that the party contesting the Will believes that the attorney who drafted the Will had either a prior relationship with one of the beneficiaries under the Will, had a personal stake in a bequest made under the Will, or the attorney allowed a beneficiary to directly participate in the drafting and execution of the Will. Obviously, if the person seeking to create a Will has had their own attorney they have utilized for many years it is perfectly acceptable for this attorney to draft a Will. Any potential beneficiaries to the Will, however, should not engage in discussions about specific provisions of the Will with the attorney who will be drafting the Will. Moreover, any potential beneficiary should not be present or witness the Will which is being executed.
While it is okay to refer a person to an attorney to draft a Will on a party’s behalf, a party should be careful if the attorney to whom they are referring the individual has been their personal attorney, and they stand to benefit by provisions of the Will. While this does not automatically invalidate the Will, a party should be careful to insulate themselves from discussions with the attorney about the provisions of the Will, and should not be present when the Will is executed. If this was to occur, a party may assert that the attorney was not disinterested counsel, as their previous client benefitted by the terms of the Will he/she drafted.
One issue which may lend itself to a stern challenge is where an attorney drafted a Will under which he or she may be a direct beneficiary. Equally suspicious is where a person drafts a Will on behalf of another party by which they themselves benefit. While this does not rise to the same level of an attorney drafting a Will by which they benefit, it obviously creates suspicious circumstances which a party should avoid at all costs.
A review of the within advice will hopefully lend some guidance in the selection of proper disinterested counsel for the creation and execution of a Will on behalf of a party. Should a party have questions, than they should consult directly with an attorney as to what would be the appropriate course of action.