Being Alive Newsletter, Being Alive/Los Angeles - October 1992
John Alan Cohan

Lawyers have to assume there will be a will contest when a client with AIDS wants to draw up a document and leave his or her family out. Many ugly things can happen. One way to prevent a contest is to include a clause that bars any inheritance by someone who contests the will. Another way is to leave something significant to a family member who is expected to challenge the will.

Drawing up a will in a hospital, while sometimes necessary, is risky because it is open to challenge on the grounds that the testator (the person who makes the will) was incompetent. If there isn't a choice, then the attorney presiding over the will signing should ensure there are three impartial witnesses plus a notary and that the will is discussed openly with the patient in front of the witnesses.

People with AIDS should execute a will before the onset of symptoms such as dementia or depression, since this can cloud a person's ability to make informed decisions and thereby thwart their long-standing but belated intentions. Because of the serious incapacities that may arise with an AIDS patient, I strongly suggest that as soon as individuals know they have the disease, they should put their financial affairs in order and either review or make out their wills.

Even though many people with AIDS have limited means and therefore not a large estate, nevertheless a will is extremely important, and is often available free of charge from attorneys. A will is a mechanism to regain some control over your life. It empowers the person with AIDS, and is a key part of helping people get ready to face the reality of their own mortality. Moreover, a will protects your privacy and permits you to make specific gifts of personal belongings, memorabilia, collections, car, and furnishings. The absence of a will can mean that money and property will go to distant relatives, cousins, or even half-blood relatives or step-relatives or even the State. Statutory will forms, while available in stationery stores, are not geared to handle the special needs of persons with AIDS, and often times the forms are thrown out of court because of simple errors made in completing the forms.

(John Cohan has been an attorney for 19 years, specializes in will, trusts and probate, and welcomes your calls at 310.557.9900.)
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