A testamentary will (aka a last will and testament), is a legal document used to transfer a person’s assets to identified beneficiaries after his or her death.
Each state has specific requirements for a last will and testament, including if it is to be typed or if it can be handwritten, if notarization is required and if the presence of witnesses during the patient signing the will is required.
When witnesses are required, the individuals must watch the will-maker sign the document, be told that the document is the will-maker’s will, state that she/he appeared to be of sound mind, and the individual/patient was not under any “undue influence”. They must then sign the will as witnesses.
Some states allow for a “self-proving” will, meaning that a sworn statement from the witnesses accompanies the last will and testament confirming the above requirements.
A self-proving will makes it easier for a probate court to determine the will is valid without requiring those who witnessed the will to testify in court.
If a will is not self-proving, the witnesses who signed the will would be required to testify in court as to what they observed during the signing.
The following case illustrates a nurse’s role in fulfilling these requirements.
Signing the last will and testament
A patient was diagnosed with metastatic renal-cell cancer and entered a nursing home after being unable to care for himself at home. He executed a last will and testament shortly thereafter and died six days later at the age of 81.
The will was drafted by his attorney. The attorney met with the patient at the nursing home without any family members present. After being assured by the patient the will correctly expressed his wishes, the attorney asked the family to return to the patient’s room.
The patient signed the will with the attorney and an RN at the nursing home as witnesses.
The will was notarized by the patient’s banker.
Earlier that day, the RN conducted a cognitive analysis of the patient. She found that (1) his short- and long-term memories were not problematic; (2) he had an alert level of consciousness; (3) he had adequate hearing; (4) he had the capacity to understand others; and (5) he had no cognitive impairment.
The RN also did a mental health assessment of the patient which indicated he was “severely depressed.”
The family and contents of the will
The patient never married and had no children. He did have two brothers, one of whom died before the patient and one who died after the patient but before this case was filed.
The patient also had a sister-in-law, now a widow, and a nephew.
The patient was very involved in his church. He donated a large sum of money to the church for a new dining area and also spoke to the church president’s son about donating land to the church prior to his death.
The deceased patient’s will indicated that all of his real property and the remainder of his estate would go to the church.
The will included his desire to transfer his residence and four acres of property to his nephew and wanted the church to complete the deed to transfer the property if the patient could not do so. The church completed the deed to transfer.
The nephew filed a petition in the probate court alleging the patient died without a will (intestate). The respondents objected to the petition, stating there was a valid will.
At the trial, the RN, the attorney and the banker each testified that the decedent (late patient) appeared to be of sound mind.
The trial court found that the last will and testament was a valid self-proved will under Minnesota law. It also held that the nephew did not present adequate evidence to overcome the rebuttable presumption that the late patient did have testamentary capacity.
The nephew admitted the will was self-proven but filed an appeal of the trial court’s decision. He alleged the will was invalid due to the nursing home violating its own rules by allowing non-immediate family members to visit the patient on the day of his death, and that the patient did lack testamentary capacity.
Appellate court ruling
In an unpublished decision (meaning it is only binding on the parties to the case and cannot be used as precedent), the appellate court began by holding the nephew cited no legal authority to support his allegation that the visits by non-family members invalidated the will. Therefore, this claim failed.
The nephew’s second allegation that the patient did not have testamentary capacity due to his severe medical conditions and depression was also rejected by the court. He also pleaded that the opinions of the attorney, nurse and banker were lay opinions.
Since this objection was not raised by the nephew during the trial, this claim also failed.
The court reviewed the state’s law concerning testamentary capacity and upheld the ruling of the lower court that the decedent did have testamentary capacity.
As to the nephew’s allegation that his uncle’s “severe depression” would result in testamentary incapacity, the court supported the respondent’s attorney’s position that there is a difference between “mental health” and “mental capacity”.
The court clearly opined that mental health does not determine testamentary capacity.
The judgment of the trial court was affirmed.
What instructions does this case have for your practice?
In most healthcare settings, facilities have a policy that nurse employees not witness any patient legal document, including a last will and testament. For healthcare settings that do allow nurse employees to fulfill this role, a policy and procedure guides the nurse when doing so.
Some points to keep in mind in either situation include:
- Know your employer’s policy concerning witnessing any patient legal document and follow it unfailingly.
- Know that even if a last will and testament appears to be valid and “self-proven,” a legal challenge to its legitimacy can take place long after the death of the will-maker.
- Clear, accurate and complete documentation surrounding any legal document signed by a patient in your facility is necessary, including your observations of the patient and what was said and by whom.
- Remember certified skilled nursing and nursing facilities allow for visitation of residents based on the resident’s choice.
- Ensure a resident’s request to have a will is followed by contacting your nurse manager so the resident’s attorney can be notified, and document that expressed desire and notification in the resident’s medical record.
Take these courses on ethics and documentation:
Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. It shows how ethics functions within nursing and on a hospital-wide, interdisciplinary ethics committee. The course explains the elements of ethical decision-making as they apply both to the care of patients and to ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation, and genetic testing.
Document It Right: A Nurse’s Guide to Charting
(5.2 contact hrs)
Although documentation has always been an important part of nursing practice, the increasingly complex healthcare environment, litigious society and the diversity of settings in which patients receive care require that nurses pay more attention to documentation. This continuing education module outlines the importance of documentation, different formats and settings for documentation, and what nurses must document, including information about difficult situations.
POLST: Planning for Life Endings
(1 contact hr)
More than two decades ago, the Patient Self-Determination Act promised more patient involvement in end-of-life treatment decisions. Unfortunately, studies have shown that current forms of advance directives have not resulted in healthcare providers’ complying with patients’ end-of-life choices. To address this problem, the physician orders for life-sustaining treatment (POLST) model and form are now used or in development throughout the United States. POLST documents medical orders based on a patient’s current health status regarding CPR, medical interventions, and artificially administered nutrition. Ideally, the process reflects thoughtful advance care planning conversations between patients and healthcare providers.