Planning for Life

What is the Standard for Incapacity to Sign a Legal Document?

Posted by Harry S. Margolis on April 16, 2019

By Harry S. Margolis

Incapacity-undue-influence-upcoming-webinar-Wellesley

I recently wrote about the standards for determining undue influence and questioning the value of consulting with a neuropsychologist to determine capacity to sign a legal document. But what is the standard for incapacity?

The answer is that it's a moving target, often depending on the situation and the document to be signed. Further, in the absence of indications of undue influence the attorney should be inclined to assist a client with questionable capacity to execute estate planning documents rather than refusing to assist the client.

Testamentary Capacity

Here's the legal standard for "testamentary" capacity, the capacity to sign a will:

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Topics: incapacity, undue influence, legal protection

6 Red Flags of Potential Undue Influence, and How to Respond

Posted by Harry S. Margolis on December 11, 2018

By Harry S. Margolis

iStock-1060986376

Most estate planning matters present no issues of potential undue influence or incapacity. The client or clients (if a couple) meet with the attorney. They discuss the clients' goals and the best ways to reach them, develop a plan, and then implement it.

But some situations are out of the ordinary and require the lawyer to take extra steps to ensure that the client is not subject to undue influence.

Definition of Undue Influence

Before we list those circumstances, let's review the elements that must be proved to establish the existence of undue influence to invalidate an estate plan. There are four such elements which together prove undue influence:

  1. The estate plan involves an unnatural disposition of the estate (see 3 below),
  2. By a person who is susceptible to undue influence (see 1 below),
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Topics: incapacity, undue influence

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