It is possible for someone who is under a guardianship to make a will. Certain procedures must be followed. And, if the individual, the ward, is not actually competent enough to make a will, then the will would still not be valid. A person can make a will if they know what their property is, at least in a general way, if they know who the natural objects of their affection are (normally their immediate family members) and if they can understand what their will does with their property at their death, they are usually considered competent enough to make a will.

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Here are the procedures for an person under guardianship to make a will:

■ WARD’S WILL MUST BE SUBSCRIBED AND ACKNOWLEDGED BEFORE JUDGE WHO SHALL ATTEST TO THE WILL’S EXECUTION. The will of a person under guardianship or conservatorship must be subscribed and acknowledged in the presence of a judge of the district court.

▸   84 OS §41 – Persons Who May Make a Will – Persons Subject to Guardianship or Conservatorship

    A. Every person over the age of eighteen (18) years of sound mind may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in this title, being chargeable in both cases with the payment of all the decedent’s debts, as provided in Title 12 of the Oklahoma Statutes.

    B. The appointment of a guardian or a conservator does not prohibit a person from disposing of his estate, real and personal, by will; provided, that when any person subject to a guardianship or conservatorship shall dispose of such estate by will, such will must be subscribed and acknowledged in the presence of a judge of the district court. The judge before whom the will is subscribed and acknowledged shall attest to the execution of the will but shall have neither the duty nor the authority to approve or disapprove the contents of the will. Subscribing and acknowledging such will before a judge shall not render such will valid if it would otherwise be invalid. (Emphasis added.)

■ RULE ALSO APPLIES TO WARDS UNDER LIMITED GUARDIANSHIP. See Myers Maxey, 1995 OK CIV APP 148, 915 P.2d 940 where attorney sued for legal malpractice for making will for Ward who was under limited guardianship of the property and general guardianship of the person, but failed to follow statute. Probate judge rejected the will for failing to follow statute. Attorney prepared a living trust and pour over will for the Ward and his wife. The wife was the guardian of her husband. The Ward was under a general guardianship of the person-could not vote, serve as a juror, drive a car, or make personal medical decisions and under a limited guardianship of his property. The guardianship court found that the husband possessed and retained sufficient mental capacity in addition to cooperation with the guardian in management of his financial resources and affairs to make a will or execute any other document directing the disposition of his property upon his death.

Brent D Coldiron
Brent D Coldiron has over 42 years experience in wills, trusts, probates, and protection of resources from nursing home spenddown. You can depend on Brent. He has experience!

■ EXAMPLE OF WILL OF WARD UNDER GUARDIANSHIP BEING UPHELD. In The Matter of the Estate of Adams, 2004 OK CIV APP 91, 101 P.3d 344 at ¶10 “…incompetency or impairment which may support guardianship was not, as a matter of law, preclusive of testamentary capacity, but was evidence for consideration of the court in determining the condition of Decedent’s mind at the time she executed her will.

Brent D. Coldiron has over 42 years experience with guardianship law. He knows what to do!

    ▸   Finding that Testatrix was impaired by reason of mental confusion and physical limitations, resulting in an inability to receive and evaluate information effectively, meet the essential requirements for her physical health and safety, and manage her financial resources would not necessarily preclude a determination of testamentary capacity. 

    ▸   At ¶11 the Court noted contestants there “confuse[d] testamentary capacity with business capacity” and “assume[d] that all persons adjudicated incompetent are in the category of ‘persons of unsound mind’.”

Planning ahead for possible incapacitating events and your death makes sense. It assures that your wishes are carried out. If you need an experienced probate, will and trust attorney, contact Brent D. Coldiron, attorney at law, 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 42 years experience handling a variety of legal matters, including probates, will, trusts, business formation, elder law, Medicaid qualification for nursing home care, corporations and guardianships. Ask Brent how to protect your estate from nursing home spend down. Give Brent a call, he knows what to do!