Attorney to Make a Will for My Parent in New York City: Answers for Adult Children

Your parent is the client, even if you made the call

You can find the lawyer, make the appointment, and drive your parent to the office. None of that makes you the client. The attorney represents your parent alone. New York's Rules of Professional Conduct require a lawyer to take instructions from the client, to keep the client's confidences (Rule 1.6), and to avoid conflicts between the client and anyone else, including a child who is also a beneficiary (Rule 1.7). If the client's judgment is impaired, Rule 1.14 tells the lawyer to keep treating the client as the decision-maker as far as possible.

In practice:

• Engagement letter: it is between the firm and your parent, and your parent signs it.
• Communications: drafts, letters, and calls go to your parent. We do not send you the draft will unless your parent tells us to, in writing, and we note that instruction in the file.
• Decisions: your parent decides who inherits, who serves as executor, and what the will says. We will not take those instructions from you.
• Information: you may give us background (names of family members, a list of accounts), but we confirm everything with your parent directly.

This is not a formality. If your parent's will is ever contested, the first thing the objecting lawyer asks is who the attorney's client was and who was giving the instructions. The file has to answer that question clearly.

Can I be in the room when my parent meets the attorney?

You can come to the office. You should not be in the room when your parent gives instructions or signs, and if you are a beneficiary you should expect to be asked to wait outside. There are two reasons.

The first is privilege. Conversations between a client and a lawyer are privileged under CPLR 4503. A third person in the room can waive that privilege. In a probate contest the drafting attorney is permitted to testify about the preparation and execution of the will anyway (CPLR 4503(b)), so the practical harm is less about privilege and more about what the attorney will have to say.

The second reason is undue influence. If the attorney's notes show that the child answered the questions, suggested the terms, or corrected the parent, those notes will be read aloud at the will contest. A parent who meets the lawyer alone, explains the plan in his or her own words, and signs without the beneficiaries present gives a contesting sibling very little to work with.

Our usual practice with an adult child who is helping:

• You may join the first phone call to handle logistics and tell us about your parent's health, hearing, language, and mobility.
• The attorney meets your parent alone to take instructions. If your parent asks that you stay, we note that the request came from your parent and still ask for private time with him or her.
• If your parent needs an interpreter, we use a neutral interpreter, not a child who stands to inherit.
• At the signing, only the attorney, the witnesses, the notary, and your parent are in the room.

My parent has dementia or memory loss. Can he or she still make a will?

Often, yes. EPTL § 3-1.1 requires a testator to be “of sound mind and memory.” The courts measure that with a three-part test from Matter of Kumstar, 66 N.Y.2d 691 (1985): at the time of signing, did your parent understand the nature and consequences of making a will, know in a general way what property he or she owned, and know who the natural objects of his or her bounty were (the family members one would expect to inherit)? That is a lower standard than the capacity needed to sign a contract. A diagnosis of Alzheimer's disease, vascular dementia, or mild cognitive impairment does not by itself fail the test. The question is your parent's condition at the moment of signing, and New York law recognizes that a person with a progressive illness can have lucid periods. Our testamentary capacity page covers the case law in more depth.

Two points matter for a child arranging the will. First, the burden of proving capacity in a contest falls on the proponent, which is usually the executor. If that is you, the record built now is the record you will have to rely on later. Second, in a contest the objectant can obtain your parent's medical records and examine the witnesses for the three years before the will and the two years after it, or until death if sooner (22 NYCRR 207.27). Whatever a hospital chart or neurologist's note says during that window will be read. A good contemporaneous record of capacity is the answer to a bad chart.

How a capacity letter from a doctor is obtained

No statute requires a doctor's letter. We ask for one when a parent is over roughly eighty, has a dementia diagnosis, is hospitalized, is on sedating medication, or is changing an earlier will in a way that favors one child. The process:

1. Your parent signs a HIPAA authorization allowing us to contact the treating physician, geriatrician, or neurologist. Your parent authorizes this, not you.
2. We write to the doctor explaining the legal test above and asking for an examination as close to the signing date as possible. A letter dated weeks before the signing is far more useful than one dated months before.
3. We ask the doctor to state the date of the examination, whether your parent was oriented, whether your parent could name family members and describe his or her assets in general terms, whether your parent understood that he or she was making a will, and whether in the doctor's opinion your parent had the capacity to do so. A one-line note that the patient is “competent” is not enough.
4. We do not ask the doctor to approve the terms of the will. The doctor's job is capacity, not the plan.
5. If the doctor declines to give the opinion or says the answer is no, we stop and discuss the options with your parent. Signing a will over a treating physician's objection is a strong invitation to a contest.

If your parent already has a court-appointed guardian under Article 81 of the Mental Hygiene Law, your parent may still make a will if he or she has capacity on the day of signing. A guardian cannot make a will for the person, and the guardianship court will not invalidate a will during the person's lifetime (MHL § 81.29(d)). The guardianship record will be scrutinized later, so the capacity documentation described above becomes more important, not less.

Hospital, nursing home, and home signings

A will can be signed anywhere. EPTL § 3-2.1 sets the same requirements in a hospital room as in a law office: your parent signs at the end of the document (or acknowledges a prior signature) in the presence of at least two attesting witnesses, declares to them that the document is his or her will, and the witnesses sign within thirty days of each other. We travel to hospitals, rehabilitation facilities, nursing homes, and private homes throughout the five boroughs for these signings. The practical issues are different from an office signing.

• Witnesses: under EPTL § 3-3.2 a gift to a witness is void unless two other disinterested witnesses signed. You and your siblings should not be witnesses. We bring our own witnesses. Hospital staff can serve, but some facilities prohibit employees from witnessing legal documents, so we ask in advance.
• Privacy: we ask for a private room or for the curtain to be drawn and the roommate's television off. Witnesses have to be able to say they saw the signature and heard the declaration.
• Medication timing: we schedule around sedatives and pain medication and ask the nurse when your parent is usually most alert. Many signings are done in the morning for that reason. The attorney records the time, the medications your parent reports, and your parent's responses to open-ended questions.
• Physical limits: if your parent cannot hold a pen, EPTL § 3-2.1(a)(1)(C) permits another person to sign your parent's name in his or her presence and at his or her direction. That person signs his or her own name and address on the will, and we use two witnesses in addition to that person. If your parent cannot read, the attorney reads the will aloud and the file reflects that.
• Self-proving affidavit: we bring a notary so the witnesses can sign the affidavit permitted by SCPA 1406, which lets the will be admitted without calling the witnesses to court in an uncontested case.

If your parent is in the hospital and is clear-headed now, do not wait for discharge. A parent who is lucid on Tuesday may be sedated on Thursday. The same formalities and the same private conversation with the attorney apply in hospice.

You as executor and as the favored beneficiary

A child can be both the executor and a beneficiary. That is the most common arrangement in New York wills, and nothing in the law forbids it. The child must be eligible to serve under SCPA 707: at least eighteen, not an incompetent, not a felon, and not disqualified for dishonesty, substance abuse, improvidence, or want of understanding. A child living outside the United States who is not a citizen can serve only with a New York co-executor. See our pages on letters testamentary and on executors with a criminal record.

The risk is not eligibility. The risk is undue influence. In a contest the objectant must prove that the will was the product of “moral coercion which restrained independent action and destroyed free agency” (Children's Aid Society v. Loveridge, 70 N.Y. 387 (1877); Matter of Walther, 6 N.Y.2d 49 (1959)). That is a hard burden. But New York courts shift part of it when a beneficiary who stood in a confidential relationship with the testator was involved in procuring the will. The rule began with drafting attorneys who wrote themselves into their clients' wills (Matter of Putnam, 257 N.Y. 140 (1931)) and has been extended to other confidential relationships. Where it applies, the proponent must explain the circumstances, although the explanation can come from any evidence and not only from the beneficiary's own testimony (Matter of Henderson, 80 N.Y.2d 388 (1992)).

Courts have also said that a close family relationship can counterbalance that inference, because a parent naturally favors a child who has been close to him or her (Walther). That helps you, but it is not a free pass. A contesting sibling will build the following picture if the facts allow: you held your parent's power of attorney, you managed the bank accounts, you lived with your parent or controlled visits, you chose the lawyer, you drove your parent to every appointment, you sat in the meetings, you paid the fee, and you came out of the will with more than anyone else. Each fact alone is innocent. Together they are the opening statement in a will contest. Our pages on abuse of a power of attorney and on a relative who left everything to a caretaker show how those arguments are made from the other side.

What reduces your exposure:

• Let your parent choose the lawyer, or at least speak to the lawyer directly before engaging the firm.
• Stay out of the meetings and the signing.
• Have your parent pay the fee from his or her own funds.
• Do not relay your parent's instructions. Let your parent say them.
• If the will treats you better than your siblings, let your parent explain why to the attorney in his or her own words. The attorney's notes of that explanation are among the most useful evidence in a later contest.
• Encourage your parent to keep seeing other family members. Isolation is the fact objectants rely on most.

What the drafting attorney will be asked at an SCPA 1404 examination

Before filing objections, a person with standing may examine the attesting witnesses and the person who prepared the will under SCPA 1404. If the will is contested, our attorney will sit for that examination. The questions about your involvement are predictable, and the file is built with them in mind:

• Who first contacted the office, and what did that person say?
• Who was present at each meeting, and for how long?
• Who supplied the information about your parent's assets and family?
• Did the attorney meet your parent alone? What did your parent say about why the estate was being divided this way?
• Did your parent appear to understand the questions? Was your parent oriented to date, place, and the purpose of the meeting?
• Were there earlier wills, and did your parent explain the change?
• Who paid the fee, from what account, and did your parent know?
• Did any child see the draft before it was signed?
• Who was in the room at the signing? Did your parent read the will or have it read?
• Did the attorney obtain a doctor's opinion on capacity, and when?

An attorney who followed the independent-client approach described above answers every one of those questions with a note from the file. An attorney who let the child run the engagement does not.

Who pays the attorney's fee

Your parent should pay from his or her own funds whenever possible. If you are your parent's agent under a power of attorney, paying the fee from your parent's account under that authority is acceptable and the file records it.

If you pay personally, Rule 1.8(f) of the Rules of Professional Conduct applies. Your parent must give informed consent to the arrangement, you may not direct or interfere with the attorney's work, and the attorney's duty of confidentiality still runs to your parent. Paying the bill does not entitle you to the draft, the file, or a report on what your parent decided. We put the arrangement in the engagement letter and have your parent sign it. Be aware that a fee paid by the child who is also the main beneficiary is a fact a contesting sibling will use. It is not fatal, but a parent paying is cleaner.

Timing when a parent is declining

Do not wait. If your parent dies without a will, EPTL § 4-1.1 decides who inherits. A surviving spouse takes the first $50,000 and half of the rest, and the children share the balance; if there is no spouse, the children take equally. A parent who wants to leave more to the child who provided care, provide for a grandchild, protect a disabled child's benefits, or include a long-term partner cannot do any of that through intestacy. See our page on administration of an estate without a will.

If your parent no longer meets the capacity test on any day we meet, we will say so and decline to supervise a signing. A will signed by a parent who plainly lacked capacity is likely to fail, and the attempt can be used to attack other documents your parent signed in the same period, including a power of attorney and health care proxy. In that situation the options are limited and usually run through the guardianship court, and we will discuss them with you honestly.

What to do if your siblings object now

Siblings have no legal standing to stop a competent parent from making a will. A will takes effect only at death, can be changed at any time before then, and is private; your parent has no obligation to show it to anyone. Objections can be filed only after your parent dies and the will is offered for probate.

That said, a sibling who feels shut out now is the sibling who files objections later. Some practical suggestions:

• Tell your siblings that the attorney represents your parent, not you, and give them the attorney's name. We will not take instructions from them either, but we will confirm whose client your parent is.
• Do not argue your siblings out of their suspicions and do not carry messages between them and your parent about the will. Let your parent speak for himself or herself.
• If your parent is willing, a family meeting called by your parent, not by you, can take the heat out of the process. The attorney need not attend.
• A sibling may respond by petitioning for an Article 81 guardianship, alleging your parent is incapacitated. If that happens, the guardianship record becomes evidence in any later contest. The capacity documentation described above is the best preparation for it.
• If your parent wants to explain an unequal division, we suggest a separate signed letter to the attorney's file rather than a lengthy explanation in the will itself. Explanations inside a will can be used as the basis for a defamation claim or can read as the product of someone else's grievance.

Two illustrations

The following are hypothetical composites written to show how the issues above play out. They are not reports of actual cases or results.

Mother with mild cognitive impairment, daughter arranges the lawyer

A widow in her eighties living in Queens has a diagnosis of mild cognitive impairment. Her daughter, who lives nearby and holds her power of attorney, calls an attorney because her mother has said several times that she wants to leave the co-op to the daughter and divide the rest equally among three children. The attorney speaks to the mother by phone before accepting the engagement, meets her alone twice, asks open-ended questions about her family and her assets, and records her reasons for favoring the daughter in his notes. With the mother's authorization, the attorney obtains a letter from her geriatrician dated ten days before the signing. The daughter waits outside at every meeting and the mother pays the fee from her own checking account. After the mother's death, a son requests SCPA 1404 examinations. The attorney's file answers each question about the daughter's involvement, and the son's lawyer has to decide whether to file objections against that record.

Father in the hospital, son wants to be in the room

A man in his seventies is admitted to a Manhattan hospital and tells his son he wants a will leaving the business to the son and cash to his other children. The son asks the attorney to bring the will to the hospital the next day and wants to be present to “help explain.” The attorney instead meets the father alone that afternoon, confirms the plan in the father's words, asks the charge nurse about medication timing, and schedules the signing for the following morning with two witnesses from the firm and a notary. The son is asked to wait in the hallway. The attorney notes the father's responses, the time, and the medications the father reported. The will is signed with a self-proving affidavit under SCPA 1406. The son's absence from the room is the fact that later makes the signing defensible.

How we handle a parent-client engagement

1. You or your parent calls. We take logistics from you and ask to speak with your parent before opening a file.
2. Your parent signs the engagement letter. If you are paying, the letter records that and your parent's consent.
3. The attorney meets your parent alone, at our office or where your parent is, and takes instructions using open-ended questions.
4. Where your parent's age, health, or the plan calls for it, we obtain a doctor's capacity letter close to the signing date with your parent's authorization.
5. The draft goes to your parent. A second meeting, again alone, confirms the terms.
6. The signing is supervised by the attorney with two witnesses from our office and a notary for the self-proving affidavit. Beneficiaries are not in the room.
7. The attorney's notes, the doctor's letter, the engagement letter, and the witness affidavits are kept in the file. Your parent tells us where the original will is to be kept and who should be told.

Related topics covered on other pages

• If your parent is married, the spouse cannot be disinherited without a written waiver; see spousal right of election under EPTL 5-1.1-A.
• A no-contest clause can discourage a weak objection by a child; see in terrorem clauses.
• Retirement accounts, life insurance, joint accounts, and the co-op held jointly with a child pass outside the will and must be coordinated with it; see making a will in New York City.
• The original will, not a copy, must be filed for probate; see lost wills.
• If a contest is already underway, see will contests.

Talk to us about your parent's will

If you are helping a parent make or update a will anywhere in the five boroughs, we can meet your parent at our office, at home, or in a hospital or nursing facility. Call the Law Offices of Albert Goodwin at 212-233-1233 or email email@nyestateslawyer.com. Ask your parent to be on the call if he or she is able.

Written by Albert Goodwin, Esq., a New York estate attorney whose practice is concentrated in wills, probate, and Surrogate's Court litigation in New York City. Statutory references are to the New York Estates, Powers and Trusts Law (EPTL), the Surrogate's Court Procedure Act (SCPA), the Mental Hygiene Law (MHL), and the New York Rules of Professional Conduct (22 NYCRR Part 1200). Last reviewed 2025.