Can a lawyer deny changing of a trust?

3 answers | Last updated: Nov 05, 2016
Robertalr asked...

My 87 year-old mother wants to remove one of her trust's beneficiaries (non-family member). I, her daughter and power of attorney completely agree with her decision. Mom has mild dementia and unfortunately, does not remember her lawyer's last visit, therefore they are denying any changes to her will at this point although she has not been declared incompetent. How can this be overruled by Mom and/or me?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your mother has the legal right to change her will and trust provisions as long as she has the mental capacity to do so. To pass the test for mental capacity, the law requires that she must know:

  • the extent and value of her property
  • the people who are the natural beneficiaries
  • the disposition she is making, and
  • how these three things relate to form an orderly plan of distribution of property.

In reality, this is not a very rigorous test to meet—and it is very unusual indeed for a lawyer to decide that a client lacks the capacity. All that matters is that the client must have the required mental capacity on the day and time that the will is signed; even those with dementia or who have had a guardian or conservator appointed can still legally change a will or trust, as long as they were able to satisfy the four elements mentioned.

In ensuring that a client has the required mental capacity, lawyers are sometimes told to ask:

  • What property do you own?
  • Who are the natural heirs?
  • What do you want to give to whom?
  • Do you understand that you are going to be signing a will?

If your mother is able to answer these questions, this should be proof of that she has the required capacity. While it is good that both you and the agent appointed as your mother’s power of attorney agree with the change, it is irrelevant from a legal standpoint.

In most circumstances, I would mention that people with legal capacity are free to amend their own wills and trusts as long as they go through the proper procedures for witnessing and finalizing them. However, in your mom’s case, since there has already been some question for some reason, it might help to avoid later legal challenges to have a lawyer involved in amending the will and trust.

If your mom has the required legal capacity, have her hire a lawyer who will do as she wishes. If she truly doesn’t have the legal capacity, then it may be too late to make the change.

Community Answers

Dagdon answered...

When Father-in-law (96) wanted to change his will, the lawyer started by trying to explain all the features of the 25-page will that involved 2 trusts, etc.  Pop got confused, and impatient and threw out the lawyer.  Why didn't she start by asking what changes he wanted?  Keep it simple--Change Executor?  Remove some beneficiary? add some member?    

It seems to me that a good atty should be able to AMEND an existing will with simply stated addendum that is clearly worded and understandable to all, without re-writing the whole thing, and without adding confusion to the scene.  Or was she only trying to generate business?

A fellow caregiver answered...

For the original poster. I found any attorney will can be hired to amend the trust and or will. If your Mother is truly unable to make the proper decisions you should take action to allow you to become the decision maker. A lawyer and her doctor will be the starting point. To the poster commenting on his father in law. I also saw how confused an elder person at 94 can get with the trust and all that goes with it. I could see confusion and frustration on my 94 year old grandmother. I do not think your lawyer was out of line. To often we see people sign things they don't understand and it comes back to haunt them. I commend the lawyer for trying to communicate exactly what they were doing. Even if a simple explanation was missing, your lawyer was following good protocol. We hire these professionals to help us. We may want to listen to their thoughts and advice. I do not expect my lawyers to be order takers and just perform a task without understanding what it is I really want to accomplish reviewing how those changes will affect me and if the documents are in line with my wishes.