Nursing Notes Play Part in Invalidating Patient’s Will

By | 2022-05-31T13:44:08-04:00 March 9th, 2022|0 Comments

It is customary for critically ill or elderly patients to decide to get their “affairs in order.” Making a testamentary will, aka last will and testament, is a common means of achieving this. This decision may be made before or after a person’s admission to a healthcare facility.

As a nurse, you may play an important role in a patient’s process of making and signing a testamentary will, as I reported in a 2020 blog. In the following case, nursing staff documentation played an essential part of a court’s decision surrounding a patient’s last will and testament.

Essential Facts Prior to Court Decisions

Edith, an elderly female, unmarried and with no children, executed two wills — one in 2008 and one in 2009. In the 2008, the patient’s will directed that the proceeds of her estate be distributed to several charities and that $30,000 be given to a male friend.

In 2009, the patient’s will directed that the residual of her will be distributed to her male friend, or if he did not survive, be shared equally between his two children. She also appointed her male friend as the personal representative of her estate.

In 2017, Edith met a woman who was a leasing specialist with a senior living community. Edith asked to be placed on a waiting list for a unit when one became available. Edith and the leasing agent then became friends.

When a unit became available, Edith moved into the community, and the two saw each other frequently afterward. In 2018, Edith gave the agent a large sum of money for her birthday and gave the agent’s son a large sum of money for school expenses.

In March of 2018, Edith fell on a community casino trip, suffered a severe head injury, and was taken to a hospital near the casino. When the agent heard of this, she drove to the hospital because the staff told her Edith was to be discharged.

When the agent arrived at the hospital, Edith did not recognize her; she was confused and “disoriented to time and place.” Nonetheless, Edith was discharged.

Knowing that Edith could not be left alone, the agent requested that she be admitted to a rehabilitation facility, where she remained for more than a week. According to the agent’s testimony at trial, Edith’s condition improved. The agent then petitioned the probate court to be appointed Edith’s guardian, and the Court granted her full guardianship.

During Edith’s rehabilitation, her physical condition “deteriorated,” and she lost 15-20 pounds. In addition, she developed a Kennedy ulcer. The agent/guardian was contacted and told of the ulcer and that “it could be days before she passes on.”

The agent/guardian sought help in drafting the patient’s will but was unsuccessful. She then decided she would draft a will herself. The drafted will revoked Edith’s prior wills and named the agent/guardian the beneficiary of all of Edith’s bank accounts, her assets, and appointed the agent/guardian her “Personal Representative and Beneficiary of my [Edith’s] estate.” Edith signed the drafted will in the presence of a witness the agent/guardian had asked to perform this task.

Nursing notes on the day that Edith signed the drafted will confirmed the presence of Kennedy ulcers on her sacral area and that their progression was quick. The notes also indicated that the patient was in “a great deal of pain,” was combative, aggressive, and physical with the nursing staff.

The agent/guardian placed Edith on a “full code” status on the same day the drafted will was signed. The next day, however, the agent/guardian signed a DNR order and requested “’comfort care or hospice’” for Edith.

Edith died eight days after signing the drafted will. Her death certificate indicated she had had Alzheimer’s dementia for years.

Three days after Edith’s death, the agent/guardian wrote herself a check for $9,000.00. She also filed a petition nominating herself as personal representative of Edith’s estate and asked that the will be admitted to probate.

Probate Court’s Decision on the Patient’s Will

Because Edith had no heirs, the state attorney general filed an objection to the petition. Following an evidentiary hearing, the probate court concluded that:

  • Edith lacked the capacity to execute the drafted will.
  • A legal presumption of undue influence existed and insufficient evidence existed to disprove the presumption.
  • The drafted will was invalid.
  • The agent/guardian was removed as personal representative, and Edith’s male friend was named successor personal representative.

The agent/guardian appealed the decision.

Appellate Court Decision

The court upheld the probate court’s decision, declaring the drafted will was invalid because Edith lacked testamentary capacity to sign that last will and testament and that the patient’s will was the product of the agent/guardian’s undue influence.

Points to Keep in Mind

Remember that your healthcare team members may not be the only ones to rely on what you document in your entries. Although the information that the nursing staff documented was essential to the healthcare team who cared for the patient, it was also essential in this legal battle over the patient’s will.

In my view, it is fairly certain that the probate court would have come to the same decision had the nursing notes not existed. However, the notes were very important in detailing the nurses’ observations and assessments of the patient’s physical and mental condition on the very day she signed the drafted will.

Your nursing notes may never be a focus of a case such as this one, but it is vital that you record a patient’s status fully, quickly, honestly, and accurately every time you document your nursing notes.


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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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