The problem with a Simple Will is that it is simple. Simple means quick, easy, and, of course, inexpensive. But, as with all professional services, one gets what one pays for.
Attorneys typically spend little time crafting or supporting simple and inexpensive documents, meaning that the documents are often not worth the paper that they are written on. Consider the following case, too, when using self-help document creation like on-line services such as legalzoom, where there may be no attorney involved in preparing and executing a legal document.
A New York trial court recently determined that an incapacitated woman was unduly influenced by her agent under a power of attorney, disregarding the testimony of the attorney who drafted a Will for the woman, because the attorney spent little time with the woman and failed to even determine her knowledge of her estate. Matter of Mitchell (N.Y. Sup. Ct., No. 100163/14, June 3, 2016).
Mary Mitchell appointed Gary Shadoian as her attorney-in-fact under a general power of attorney, and health care proxy. Mary Mitchell, a municipal employee, was entitled to free legal services under a Legal Plan provided by her employer. Mary Mitchell may have initiated the process of preparing a Will, but after poor follow-up, Mr. Shadoian contacted the attorney on Ms. Mitchell's behalf to complete the Will. The attorney had one conversation with Ms. Mitchell over the phone and met her once in person. The attorney allowed Mr. Shadoian to be present when Ms. Mitchell executed her will even though Mr. Shadoian was a beneficiary of the will.
After Ms. Mitchell was repeatedly hospitalized, the court appointed guardians for her. The guardians filed suit against Mr. Shadoian, arguing that he unduly influenced Ms. Mitchell. At the trial, the attorney who drafted the will for Ms. Mitchell testified on behalf of Mr. Shadoian that he did not know Ms. Mitchell was incapacitated, but the attorney admitted that he had not made even simple inquiries about her knowledge of her estate.
Mr. Shadoian testified that he and Ms. Mitchell were not romantic, and not social friends, but as a co-worker, he had over time become her caregiver. Ms. Mitchell was not close to her sisters or other family members, as they admitted, although they testified against Mr. Shadoian that Ms. Mitchell had never given gifts to anyone, never contributed to or been a member of any social organizations, and was a spendthrift unlikely to give anyone gifts or leave her estate to anyone.
Mr. Shadoian testified that he would drive to Ms. Mitchell's apartment after work nearly every night, and telephone records reflecting scores of telephone conversations between the two were introduced into evidence. For example, between February 17, 2011 and March 16, 2011, more than 60 telephone calls between the IP and George Shadoian were reflected in cell phone records He testified regarding the actions and efforts he made on Ms. Mitchell's behalf. By all accounts, Mr. Shadoian was her most intimate and longest existing contact. Those testifying against Mr. Shadoian suggested that his efforts to involve himself in her life were equally successful in discouraging or preventing others from taking an active interest in her care.
The attorney was Mr. Shadoian's only other witness.
The New York Supreme Court ruled that Mr. Shadoian exercised undue influence over Ms. Mitchell. The court determined that Mr. Shadoian's testimony was not credible, and that the testimony of the attorney that prepared Ms. Mitchell's Will "was too threadbare to carry much weight." The court was critical that the attorney "failed to make even elementary inquiries as to the actual size of the estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the will."
The testimony of the person who should have been able to testify competently and independently regarding Ms. Mills wishes and competency was dismissed. The free Simple Will was unforceable. Simple.
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