Time to Make a Will?

My partner, and the smartest attorney I know, Ed Reda, penned today's blog post about the "right time" to make an estate plan.  Is it ever too late to make a will?

At various times in our life, most of us have thoughts about the need to make a will.  Most of us put that task off by telling ourselves we will get to it later.  But is there a time when it is too late to make a will?  Surprisingly, the answer is a resounding “Yes.”  Here is an actual fact pattern that happened to me today.

I received a call from a fellow we will call Ralph indicating that his friend, Dave, was in Resurrection Hospital and wanted to make a will.  I asked Ralph what was Dave’s medical condition and he replied that Dave had Stage IV lung cancer and was receiving hospice care.  I asked Ralph why he was calling me instead of Dave.  He replied “Dave is really weak and can’t hold the phone.  He asked that I get an attorney for him.”

The red flags popped up all over.  First, any time someone other than the client calls to engage your services, an attorney should proceed with caution.  Does this person have an ulterior motive?  Why isn’t the client calling?  Ralph’s response to my question didn’t put me at ease.  Any time an attorney is called to a hospital to do a will, there is a stronger than normal chance that some heir or relative, disappointed in the terms of the will, can challenge the competence or capacity of the client after his or her death.    The reason is obvious–people in hospitals are not well, and therefore, oftentimes not thinking clearly or in charge of their emotions.

Finally, wills prepared and signed shortly before a person’s death are also often subject to challenge.  Once again, a person days from their death is likely very sick and oftentimes, because of either their medical condition or the medications they are receiving, not completely lucid.  When the client is in hospice care, suffering with Stage IV cancer and too weak to hold a phone, the risks of the will being challenged, and the attorney being criticized for preparing it (or worse, being sucked into litigation) increase exponentially. 

For all of the above reasons, I declined to accept this assignment.  I feel somewhat badly for Ralph’s friend, since he may die without a will, or without a will that expresses his current feelings.  But, he has brought that problem on to himself.  A person truly can wait too long to make a will.