Before you signed your Last Will and Testament, did you read it carefully? Do you know and understand the contents of your will? Does your will reflect your wishes today for the disposition of your assets? The language in a will is not always easy to follow or comprehend, but there is a reasonable expectation that you are familiar with the terms of the will, either by discussing the terms with an attorney before it’s drafted and, by reviewing it before signing to ensure the will accurately reflects your wishes.
For over a hundred years in Massachusetts there has been a presumption that one who signs a will, a testator, knows its contents. While this presumption is rebuttable, in Massachusetts, unlike many states, there is no clear standard setting forth the burden someone challenging the allowance of a will must meet to overcome the presumption. In a recent case, Barounis v. Barounis, the Massachusetts Appeals Court faced this hurdle when confronted with multiple challenges to three conflicting estate plans that a Greek business owner with limited English language skills signed in the decade prior to his death. Assuming the need for “clear” evidence in support of a finding that a testator did not as a matter of fact know the contents of the most recent will he executed, the court found that the presumption was rebutted where the testator spoke only Greek, did not read or speak English, and did not ever express his wishes to his accountant who arranged for the will to be drafted by an attorney, who himself, did not speak Greek, and never spoke to the testator before meeting with him to sign the will.
While the facts in the Barounis case may seem extreme, they serve as a reminder to take special care when preparing an estate plan for a client. First, a client who does not have full command of English must have an independent translator during all attorney-client communications if the attorney does not speak the client’s native language. Second, regardless of the circumstance, adult children of the client should not participate in the initial meeting between attorney and client to protect the client from potential undue influence. Finally, it is critical that attorneys not only request written information about assets from a client, such as with a questionnaire, and document the wishes of the client during the drafting process, but also review the details of the estate plan before a client executes the documents. These steps will ensure that a testator knows and understands the terms of his will and estate plan, and can avoid dire consequences as we saw in the Barounis case.
So, on a final note, if you don’t remember what your will says or whether it still reflects your wishes, dig it out of the safe deposit box or contact your attorney. It may be time for an update.