Late-Life Marriage and Will Amendments: Lawyers, Proceed With Caution

As medicine advances and we live longer lives, late-life marriage is more common today than it was when the law governing both marriage and wills first evolved. Where the lawyer learns that an older client has entered into a recent, late-life marriage, a degree of caution is recommended and issues of capacity and undue influence should be considered.

In the new Wills & Estates issue of the LAWPRO Webzine, Nora Rock (corporate and policy writer at LAWPRO) interviewed Kimberly Whaley of Whaley Estate Litigation and asked for her practical recommendations for lawyers working with wills clients who have married late in life.

When accepting a will-drafting retainer from a client who has gotten married late in life, Whaley says a lawyer who would like to avoid will challenges (and malpractice claims!) should do the following:

  • consider the testator’s capacity, and act on suspicions of incapacity;
  • remember that a client with capacity can nevertheless be subject to undue influence if he or she is vulnerable for other reasons: Ask probing questions;
  • make detailed notes of suspicions/observations, questions asked, client answers, requests made, client responses to requests, and of the details of your advice in the context of what you’ve learned;
  • send a detailed reporting letter that includes not only details of the work you’ve done, but also details of your requests, the client’s responses to those requests, and details of your advice (even when the client hasn’t acted on it);
  • preserve your will files; and don’t dabble in wills practice if you lack – or are unwilling to develop – a detailed knowledge of the area.

The full text of the article can be found here.

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Comments

  1. The first message of this article is that a person may have capacity to marry but not capacity to remake a will after marriage. Since the earlier will is revoked by the marriage, when the remarried person dies, he or she does so intestate – and the new spouse or the new spouse’s children take the assets that the deceased and his or her children may have legitimately expected to pass to the first family.

    Even when the parties to the marriage have capacity to make a new will, they may not be alerted to the need to do so, with the same result on death.

    People don’t need legal advice to remarry, and they may not even have a lawyer, or think to consult about the consequences of remarriage.

    Is there a case for changing the old rule that marriage revokes a prior will, to avoid such unpleasant surprises and probable cases of injustice?