[WSBAPT] Restraint on Will Revisions??

[James W. Spencer]

Hi Heather:

I don’t see how it would be enforceable. The will is a testamentary instrument, and I’m not certain that your client would have any luck reversing revisions made by the mother to her power of attorney prior to death based on an instrument that only becomes effective upon her death.

If mom has the capacity to sign a new will or codicil, it seems she would presently have the capacity to effectuate changes to her power of attorney. If the son becomes concerned that someone will later unscrupulously help mom create a new power of attorney, then he may need to look to other avenues: guardianship or a VAPO.

When I do something like this for a client, I make sure that it is clearly in writing that I don’t believe the provision to be enforceable. Beyond that, I don’t think there is any harm to having an unenforceable provision in the will. It just isn’t to my (and I suspect your) taste. 😊

Happy New Year!

-James

James W. Spencer
Brothers & Henderson, P.S.
2722 Eastlake Avenue East, Suite 200
Seattle, Washington 98102
Phone: (206) 324-4300 x106
e-mail:  jamess at brothershenderson.com<mailto:jamess at brothershenderson.com>
www.brothershenderson.com<http://www.brothershenderson.com/>

The information transmitted in this e-mail message and attachments is attorney-client information, is privileged or confidential material and is intended only for the use of the individual or entity named above. If you have received this transmission in error, immediately notify the sender by reply e-mail and permanently delete this transmission and all copies including attachments.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Thursday, December 28, 2017 8:47 AM
To: 'wsbapt at lists.wsbarppt.com' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Restraint on Will Revisions??

Client has asked for the following language to be inserted in his mother’s Will. I previously prepared father and mother’s Will and assisted in the administration of father’s estate when he passed a few years ago.

“No revisions, changes, additions,  addendums or any other written modifications to the current Durable Power of Attorney (dated ____), and, or Codicil to The Last Will And Testament of MOM (dated _______), shall be made without the prior review, approval and consent of both MOM, and her designated Personal Representative,  SON, as noted in article 5.1 “Fiduciary Provisions”  per  “The Codicil to The Last Will And Testament of MOM”.  In the event that MOM is no longer able to perform on this bilateral approval and consent process, then the sole responsibility is under the decision making authority of SON, or the next designated Personal Representative, in the event SON is unable or unfit for any reason to act as the currently appointed Personal Represented, as indicated and listed per article 5.1.

Anybody think such language would be enforceable? FWIW, I think son has good intentions, and mom (when she had full capacity) would willingly agree to add the language, and current Will essentially follows intestacy. I haven’t talked with mom in a year or more, so not sure of capacity, but dementia has been an issue.

Heather


Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
Click here to connect with de Vrieze | Carney on Facebook:   [FB Logo] <https://www.facebook.com/DeVriezeCarney>

CONFIDENTIAL & PRIVILEGED. This e-mail message may contain legally privileged and/or confidential information.  If you have received this e-mail in error, please notify the sender immediately and delete all copies of this e-mail message and any attachment.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20171228/ebbf7571/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 4866 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20171228/ebbf7571/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 3264 bytes
Desc: image002.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20171228/ebbf7571/image002.png>