Can I help my parent create a Will?
The answer is yes and no. Yes, you can help to the extent your help is requested. No, you cannot substitute your desires and goals for those of the person executing the Will. You cannot execute a Will for someone else. However, you can assist your parent in signing the Will if it is at your parent’s direction.
Anyone can have Estate Planning documents prepared (if they have capacity). Ultimately, your parent has to make his or her own decisions regarding what goes in the documents. The more you participate in the process, the more likely it is that someone could successfully accuse you of undue influence if you are favored over your siblings or other heirs-at-law.
Here are a few examples of things that are somewhat benign:
- helping your parent find a lawyer;
- helping your parent get a questionnaire so the lawyer knows what your parent wants and has the correct names, addresses, etc. to prepare the documents; and
- transporting your parent to and from the lawyer’s office.
Things that get more questionable:
- completing the questionnaire for your parent (as opposed to simply being his or her scribe);
- sitting in the room with your parent while he or she is discussing his or her desires with the lawyer; and
- sitting in the meeting while your parent executes the documents.
The likelihood that a challenge would be successful increases if you have a confidential or fiduciary relationship with your parent (e.g., you’re the sole caregiver for your parent). Most of these concerns tend to go away if all of the children (or heirs-at-law) get an equal share, but the farther the Will deviates from dividing the estate evenly among the children, the more likely it is someone will complain. The ultimate question is whether the Will is your parents Will, or whether it’s your Will for your parent. A qualified lawyer involved can help navigate these issues and help minimize the likelihood that the Will is successfully challenged.
