Law Tips; Avoiding Will Challenges, Videotaping Beware!

“Remember, there is only one shot at a perfect video. If it does not work as planned, the lawyer must maintain the defective product or face a charge of spoliation of evidence.”

Our Elder Law faculty participant, John A. Cremer, Cremer & Cremer of Indianapolis, offers his expertise to assist lawyers in minimizing the risk of a successful challenge to a will or trust. There are many important issues he outlines in his CLE presentations relating to the preparation for a sound and effective will. For example, Mr. Cremer’s experience with clinical versus legal capacity concepts results in certain cautions about videotaping your client’s will. Here are his words of wisdom:

VIDEOTAPING- BEWARE!
Under certain circumstances, it may be appropriate to videotape the execution of a will. It is the writer’s opinion that, unless the lawyer has addressed and cured all factors that could negatively affect the video, videotaping will executions should be avoided.

As a preliminary matter, it is human nature that videotaping will bring about some level of apprehension on the part of the subject. In addition, the stress of the situation, coupled with the importance of the event, is bound to create additional agitation. Out of fear of these external factors; the lawyer instinctively creates, and rehearses with the client, a script. Instead of producing a seamless and natural video, time and time again, the author has reviewed videotaped will executions wherein the lawyer leads the client, and even cues the client, to the answers. On one occasion, the author observed a videotaped demented client review the will with the lawyer page by page, line by line. Only when she reached the signature line on the last page, did she remove the reading glasses from the top of her head and put them on.

The lawyer’s custom and practice should be an important factor in deciding whether or not to video a will execution. If the lawyer has never videotaped a will execution, her first will draw interesting questions on cross examination, should the document be challenged. Remember, there is only one shot at a perfect video. If it does not work as planned, the lawyer must maintain the defective product or face a charge of spoliation of evidence.

If a video is to be used for execution, it is critical that it be narrative and conversational. If possible, the lawyer should use open ended questions which invite natural, and unrehearsed responses.  What may be a better use of videotape is a “day in the life” of the client where she is in a natural setting, comfortable with her surroundings and engaging in favorite activities. The client’s desires and a discussion of her estate may be incorporated into the video.

I am appreciative of John Cremer’s pointers on the pitfalls of will preparation. This advice is a segment of ICLEF’s Elder Law Institute. To sign up for this year’s upcoming 2013 Elder Law Institute October 10-11, Click Here.

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About this Law Tips Faculty Participant:
John A. Cremer of Cremer & Cremer, Indianapolis, was admitted to the Bar of  Indiana in 1989 after receiving his J.D. from Indiana University.  He has served as Co-Chair of  ICLEF Probate Litigation Seminars in October 1994, May 2000, December 2004, May 2009 and November 2011. For the past seven years, he has been the contributing editor to Henry’s Indiana Probate Law and Practice. John is a member of the Indianapolis, Indiana State and American Bar Associations; ACTEC; Indiana Bar Foundation; Estate Planning Council of Indianapolis. He practices in the following areas: Trust and Estate Litigation; Estate Planning; Estate Administration, Appellate Practice.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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