Preparing a Will for a Client with Communication Challenges

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) has recently posted on SSRN his article entitled Preparing a Will for a Client with Communication Challenges which appears in the April 2012 issue of Trusts & Estates, the newsletter of the Illinois State Bar Association’s Section on Trusts & Estates. An abstract of the article is below:

Your client may have difficulty with communication, that is, the client may be unable to see, hear, write, or understand English. To effectively prepare a will for these clients, the estate planner must initially ascertain whether the client has a communication challenge and then take affirmative steps to make certain the challenge does not negatively impact the validity of the will. Extra attention must be given to make certain the requirements of a valid will are satisfied and that individuals displeased with the will do not use the communication challenge as a foundation for claims of undue influence or fraud. Even without other evidence, courts may subject the will of a communicationally challenged client to higher scrutiny.

This article reviews a variety of communication challenges (visually impaired, hearing or speaking impaired, physically unable to sign, illiterate, non-English speaking) and recommends techniques to reduce the likelihood of these challenges playing a part in setting aside the testator’s will.

Note that although this article was prepared with the Illinois practitioner in mind, the general concepts and suggestions apply in other jurisdictions as well.