Attorney not liable to potential beneficiary in undrafted document
One of the bedrock rules for estate planning attorneys is that our clients must have sufficient mental capacity to execute their documents. This does not mean that a client has to have perfect understanding of every passage of legal boilerplate. Basically, a client needs to be able to understand the nature of their property and the "natural objects of their bounty" -- i.e. who their family members are.
I have had situations in which I have interviewed potential new clients (generally senior citizens who were brought to me by their children), and have refused to represent them because I did not believe that the potential client had capacity to execute documents.
What made me think about this is that I read an article about a case in California, in which an attorney was sued for malpractice by a decedent's new wife because the attorney refused to amend the Decedent's trust before the Decedent received a psychiatric evaluation. According to an article in the Metropolitan News-Enterprise, the attorney did not owe duty to a potential beneficiary for a document not drafted.
Although it does not directly impact me because I am not in California, it is interesting nonetheless, as it is a constant reminder of the many interests that estate planning attorneys have to balance in working for our clients.
