Jennifer had grown up having to watch her pennies and had maintained her thrifty ways, even after she and her husband, Bill, were making excellent money through their successful carpet business. After Bill died, leaving all his estate to Jennifer, she sold the business for enough to allow her to live comfortably the rest of her life.

Jennifer considered herself a savvy seventy-year-old. Indeed, she was. She’d been using computers since the mid-‘80’s and knew a thing or two about navigating the internet. Carrying her practice of frugality into the process of making a new will, Jennifer opted to make a do-it-yourself online will, dividing all her assets equally between her two sons, Mark and Clark. Jennifer deposited the DIY will in her safe deposit box at the bank and forgot about it. That was in 2015.

In 2016, Jennifer developed lung cancer. Her son Mark, who had recently divorced, moved in with her and cared for her over the next twenty-two months before she died. Clark visited often and the two brothers collaborated congenially over Jennifer’s care the entire period.

Approximately, six months before her death, Jennifer made out a new will, this one also a DIY variety made out online. This time, Jennifer’s will devised her assets with one-third going to Clark and two-thirds going to Mark.

Jennifer’s having executed DIY wills with differing provisions was a set-up for a will contest under the circumstances. As often happens in families such as Jennifer’s, the two sons viewed Mark’s care of their mother through vastly different lenses. Mark thought he had sacrificed freedom and independence moving in with Jennifer and taking over a number of responsibilities for her care and that of the home.

As Clark saw it, their mother was giving Mark a free place to live after he’d had to vacate his home to his ex-wife and children. And it wasn’t as if Mark was the only caregiver. Jennifer’s funds had been sufficient to hire daily housekeeping and health care assistance in addition to care paid for by insurance.

Clark was certain that Mark had unfairly influenced their mother to redo her will in Mark’s favor. Mark insisted that was not the case. Then there was the question of whether his mother had had sufficient faculties to understand what she was doing when she made the second will. Clark filed suit to contest the second will.

After spending tens of thousands of dollars on attorneys’ fee and expenses in the will contest, Mark and Clark eventually settled the suit, dividing a substantially reduced pie.

Had Jennifer had a lawyer representing her when she made the second will, it may not have prevented a lawsuit. However, it would have been much more difficult for Clark to make a case. An attorney would have known the questions to ask to make certain that Jennifer acted on her own volition without pressure from Mark. An attorney would have also known the steps to take to ascertain Jennifer’s mental state and assess whether she had the capacity to make a will before offering assistance in executing a new one.  A lawyer’s expertise would make it more likely that the will made was a valid one. Finally, an attorney would have been an independent third party who could testify at trial as to any issues regarding validity.   

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.