Directions:

Your supervising attorney has asked you to sit in on the finalization and signing of a will by a very wealthy client, John Bender. Mr. Bender is ninety-one years old, and has decided to write his son out of the will. He believes his son, Mark, is wasting his life, and Mr. Bender does not want to provide him with the means to continue to do so after he is gone. Instead, he has decided to leave half of his estate to his granddaughter Tracy, and the other half to the Humane Society. When finishing the discussion about his will, Mr. Bender refers to his granddaughter as “Trixy” instead of Tracy, and discloses that he was recently in the hospital for pneumonia. In your initial discussion this week, you should discuss whether there is cause for concern over Mr. Bender’s capacity to be signing the will, and whether there are any ethical issues you are concerned about. Your discussion should be supported by legal research from your home state. (Florida)

In a reply post to your classmate, you should discuss ways in which you could ensure that the client has the proper capacity to be signing the legal documents. What steps could you take to ensure there would not be a will contest for lack of capacity?

E. VILLA

16 hours ago, at 7:21 PM

NEW

THE NECESSARY STEPS TO TAKE TO ENSURE THAT MR. BENDERS WILL IS NOT CONTESTED.

INTRODUCTION.

Once a family member dies, it is almost impossible to prevent relatives from contesting one will, but there are necessary steps that one can take to try and minimize this.

A will can be contested if at all a family member believes that:

• You don’t have the requisite mental capacity to execute the will
• Someone exerted undue influence over you.
• The will wasn’t properly executed.

In our given case, there is a cause for concern regarding Mr . Bender signing the will.

First and foremost, due to his old age, Mr. Bender refers to his granddaughter as “Trixy” instead of Tracy. Secondly, he also discloses that he was recently in the hospital for pneumonia. These are clear indications that Mr.Benders’ will could be contested because he lacks the requisite mental capacity to execute the will.

Despite this, there are steps that one can take to ensure there would not be a will contest for lack of capacity.

These steps are:

1. Proving competency.

One way to ensure that Mr.Benders’ will is not contested due to lack of capacity is to prove competency. This can be done by him visiting a doctor where tests can be done and get him to answer a couple of questions. Also, an attorney drafting the will could test him for competency.

2. video-recording the will signing

Also, while signing the will, taking a video would allow the family members and a court of law to see that Mr . Bender is freely signing the will. This will make it difficult to argue that he did not have the requisite mental capacity to agree to the will.

Explanation:

3. Remove any appearance of undue influence

Another way to ensure that the will is not contested based on lack of capacity is to remove the appearance of any undue influence.

For example, since Mr. Bender has decided to leave half of his estate to his granddaughter Tracy and the other half to the Humane Society, he ought not to involve Tracy or the Humane society when writing the will discussing the will with an attorney. So as to remove an appearance of undue influence, then Mr. Bender should leave Tracy and the Humane society out of the talks in regards to the will.

4. Use a no-contest clause.

Finally, Mr. Bender and his attorney could use a no-contest clause as a way of ensuring the will shall not be contested. A no-contest clause usually provides that if at all an heir challenges, they will be lost, then they will not receive anything.

5. Ensuring that the will is executed correctly.

The best way to do this is to ensure that an experienced attorney assists one in drafting and executing the will, which will need to be signed and witnessed by two independent witnesses.

ETHICAL ISSUES ARE EVIDENT IN THIS CASE.

There are various ethical issues which are evident in this case, and they are:-

• The autonomy which refers to one’s right to control one’s destiny, that is, to exert one’s will, in this case, by Mr. Bender. This is because there are concerns on whether he can be able to make independent decisions rationally.
• In this case, beneficence is also an ethical issue, which refers to the duty to do good for others, help them directly, and avoid harm.

Finally, we have justice which focuses on fairness in the treatment of others. In this case, Mr. Bender is not fair to his son Mark who he thinks will ruin his life. He ought to be in his will as he is a rightful heir to the property.