Urgent estate planning can raise difficult questions about a person’s ability to give instructions. Hall v. Bennett Estate concerned a lawyer asked to prepare a will for a terminally ill hospital patient.

The lawyer interviewed the patient, who drifted in and out of consciousness. Concerned that the patient lacked testamentary capacity, the lawyer declined to prepare the will. The patient died later that day without one.

An intended beneficiary sued the lawyer and initially succeeded. The Court of Appeal allowed the lawyer’s appeal.

The relevant negligence question was whether a reasonably prudent lawyer in the circumstances could have concluded that the patient lacked testamentary capacity. It was not simply whether a court could later conclude that capacity existed.

The decision discusses the need for a sound disposing mind, including an understanding of the will’s effect, the property involved, and potential beneficiaries’ claims. Merely communicating a desired gift is not necessarily enough.

On the facts, the lawyer properly declined the retainer and was not liable to the intended beneficiary.

What this could look like in practice

Imagine a hospitalized person telling a relative that a friend should receive the house. The relative arranges an urgent legal appointment, but the person’s alertness fluctuates.

Helpful background for the appointment might include existing estate documents, a basic asset list, and information about the person’s usual communication needs. The lawyer would still need to make an independent assessment of the instructions received.

From a later dispute’s perspective, contemporaneous observations would be particularly useful: when the conversation happened, who was present, and what the person actually said.

The takeaway

Planning before a medical crisis gives people more opportunity to explain and document their wishes. When reviewing an urgent or incomplete estate plan after death, distinguish an expressed wish from the separate questions of capacity, valid instructions, and execution.

The information on this page is provided for general educational purposes only and does not constitute legal advice. These summaries highlight selected principles and do not address every issue or subsequent legal development. Examples are hypothetical and do not predict the outcome of any case. The application of a decision depends on the facts and applicable law. Reading this page or contacting our firm does not, by itself, create a lawyer-client relationship. If you have further questions or require advice about your situation, please contact us.