An aging population, coupled with ever-changing estate tax provisions, such as those we confront at the end of 2012, may require attorneys to consider estate planning for clients who have become mentally impaired. This article explores the limited options under New Jersey law for such planning.
The Low Standard for Testamentary Capacity
Our courts describe testamentary capacity as the lowest standard for capacity known in the law. Gellert v. Livingston, 5 N.J. 65(1950). When confronted with a need for estate planning for tax or other reasons, the attorney should first explore whether his client possesses capacity to make a will. In that context, the attorney would be called upon to consider his ethical obligations under RPC 1.14, including the preservation of the putative testator’s intentions (if the attorney is satisfied the client in fact possesses capacity), while declining to engage in such planning if the client is incapacitated. See American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct, Comment on RPC 1.14. Of course, where there is potential incapacity, a will executed under such circumstances would be subject to challenge.
A Person Adjudicated Incapacitated May Not Make a Will
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