Testamentary Capacity

Testamentary Capacity

I just finished reading John Grisham's Testament. In this 1999 novel, the main theme concerns the question of whether an elderly billionaire was mentally competent when he wrote his Last Will and Testament leaving his entire fortune to an illegitimate daughter while omitting his other six children. The issue of whether a client has the capacity to execute estate planning documents is one that often must be addressed by elder law attorneys.

There are different levels of capacity depending on the type of transaction that is being considered. The degree of capacity required to enter into a business contract, for example, is greater than that required to make a testamentary gift or conveyance. In addressing whether the client has testamentary capacity, the attorney should determine, at a minimum, whether the client understands the extent of his or her estate and knows the natural objects of his or her bounty.

There are complexities inherent in determining capacity and each situation will be different, requiring a different level of assessment. There are various tools that can be used to determine capacity such as legal capacity questionnaires and mini-mental exams. Sessions can be videotaped and recorded as a way of documenting the asessment. For some clients, a brief note in the file regarding the client's understanding could be sufficient.

In all situations, though, some type of assessment will be useful in the event that someone, at some time, questions whether the client was competent and the Will is valid.
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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

A helpful tool for Estate Planning and “Advance Directives”

We often find that clients do not follow through with all aspects of their estate and post-death plan because they are reluctant to address their mortality. On the other hand, if clients do prepare a comprehensive plan, they often express a feeling of relief and satisfaction. The key word is “comprehensive.” What should a person consider when organizing their plan? Here is a partial list:

• Disposition of assets
• Payment of debts
• Funeral arrangements and special requests regarding the type of ceremony
• Anatomical gifts for science
• Anatomical gifts for transplants
• Living will provisions
• Disposition of personal property including gifts of specific items to family members and friends
• Charitable donations
• Tax consequences of gifts and bequests
• A family history or personal memoir

It can be a daunting task to organize all of the above matters. We suggest that you review all of these matters with an experienced estate planner and elder lawyer. We also suggest that you consider the use of The Beneficiary Book which is available in book form or in computer disc form. This book is a supplement to a personal or family estate plan. We buy the books and CDs in bulk and deliver them at our cost to clients. Our clients then add their own data and keep it up to date in the future.

Let us know if you would like to look at The Beneficiary Book. We think you will feel better if you leave the gift of a clear and well-organized plan for your family.


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

"Homecare" doesn't have to mean nurses.

I recently met with my women's networking group called SeniorRULE. We are Resources Unlimited and Liaisons for Elders. One of the members owns a homecare agency, and she has been in business for about 6.5 years now. Kathy Devlin, founder of "All About Home Care" originally started by providing companion care, which did not include CNA or skilled nursing. She could provide companions to do the cooking and cleaning, grocery shopping, driving, and to simply be there for someone who did not have anyone else. She recently went through the administrative requirements so she could also provide CNAs (Certified Nursing Assistant) in the home, but she continues to staff companions.

Kathy felt it was important to remind us that various services can be provided by a companion, and other services are required to be performed by a CNA. Companions can be much less expensive for the patient, and perhaps one should be considered if you or your loved one needs more attention than you are able to provide. It is typical when people begin using a homecare agency to hear, "I should have done this ages ago!"

If you or your loved one is in need of extra help, and you are not sure where to turn, call us at the Law Offices of Jeremy Howe and we can discuss what services may be available in our area and try to make sure your affairs are in order to make your life and those of your loved ones easier.


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Elder Law Attorney Assists Client After Death of Loved One

 Testimonial for Attorney Hilary Carlson

After a Middletown, RI client's father passed away, he sought the assistance of The Law Office of Jeremy Howe, LTD.

Attorney Hilary Carlson handled the details of his father's estate and she later received this note from the client:

"Hilary - The day I met you, I was a mess. I was so upset about my dad and everything that I had to get done, and then you helped me out and I just started to feel better.

Thank you so much."


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.