Will changes done toward the end of life may cause problems for the parties involved

A recent story in the Kitsap Sun, a Bremerton, Washington newspaper caught my attention. The full story is found here. The scenario is about the estate of Eva Rova Barnes and it illustrates some of the challenges faced by the various parties involved in late-life will changes. Ms. Barnes was a Poulsbo area woman who passed away in 2011. She was almost 95 years old at the time of her death. Her estate included a substantial stake in 46 acres of land, real estate, and other property.

When she passed away in 2011, her will gave a large portion of her estate, including some of the land, real estate and other property, to her friend and caregiver, Michelle Velarde. Ms. Velarde used to be Ms. Barnes’ mail carrier. The will was changed toward the end of Ms. Barnes’s life and it gave the majority of the estate to Ms. Velarde.  The changes were overseen by Barnes’ attorney. A meeting took place with the Barnes family, and Ms. Barnes even signed an additional document explaining why she wanted to change her will.

The Barnes family challenged the will successfully in Court and the estate was returned to the Barnes’ family.

Some interesting facts emerged during litigation. By all accounts, Ms. Barnes was a strong-willed woman who gradually lost her independence as her age advanced. As she started to rely more on Ms. Velarde, it was alleged that she distanced herself from her relatives as a result of influence by Ms. Valerde who provided help to Ms. Barnes by caring for her full-time, sleeping next to her and living with her during her final days. Although Ms. Valerde provided care for Ms. Barnes and appeared to be helpful, several other details came out during litigation. Ms. Valerde had changed Ms. Barnes’ phone plan to allegedly save money, however the Barnes family argued that this was one of the tactics utilized to isolate Ms. Barnes from her family. The Court also found that the a mortgage payment was made from Ms. Barnes’ account toward Ms. Velarde’s house on the day she died.

The story illustrates some of the issues vulnerable seniors may face in their later years as they become more dependent on their caregivers. Many feel the need to bequeath gifts to their caregivers out of gratitude. It is important to note that as caregivers spend more and more time with a person who is losing their independence, that person may become isolated from his or her family. If a will is changed so that the distribution is dramatically altered, any disinherited beneficiaries will likely challenge the will. If a caregiver like Ms. Valerde suddenly stands to receive a substantial gift under the new will, his or her actions are likely to be scrutinized by the other beneficiaries and the Court. As was the case in the Barnes estate, a Court may find that the will changes were the result of undue influence by the caregiver.

The story also illustrates some of the challenges lawyers involved in estate planning may face. A lawyer is not a capacity assessor. If a lawyer believes the client has capacity to make a will, he or she may proceed with the changes only to later find out that the testator had started to decline mentally. It is therefore important to seek professional help from a capacity assessor when dealing with late life will changes. If not, the will may be challenged successfully, and the lawyer may be sued for negligence.