Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, July 17, 2013

Article on Capacity and Estate Planning


Robert Whitman (Professor of Law, University of Connecticut Law School) recently published an article entitled, Capacity for Lifetime and Estate Planning, 117 Penn. St. L. Rev. 1061 (Spring 2013).  Provided below is the abstract of his article:

Clients consulting with elder and estate planning attorneys for estate planning documents will likely receive a “package” of five documents: a will, a trust (revocable or irrevocable), a health care power, a durable power of attorney, and a living will. Although capacity standards have varied for each of the items in the “package,” an informal survey of American College of Trust and Estate Counsel (ACTEC) members reveals that practitioners do not pay attention to these distinctions when they create the “package.” Practitioners are either unwilling to accept the engagement for lack of competence or willing to overlook the capacity distinctions when accepting the engagement. This article thus advocates for a uniform test for capacity when an attorney considers preparing the “package” for a client.


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