Can a Person Subject to a Guardianship Make a New Will?

No, if the guardianship court takes away the right to make a new will.  If the guardianship court has not taken away the right to make a new will, the new will might be valid. The recent Rhode Island Supreme Court case of Duffy v. Scire, 222 A.3d 59 (R.I. 2019) explains how the ability to make a new will while in a guardianship in Rhode Island can be restricted.

What Rights Can a Guardianship Court Remove From a Ward?

Each state has different rules for removing or restricting the rights of wards.  In Rhode Island, the guardianship court has the power to stop a ward from doing any estate planning, i.e., make a will.  In the Duffy case, the guardianship court included the following language in its order appointing a temporary limited guardian:

That, Bartolomie Scire shall not do any estate planning[,] including but not limited to the revoking or drafting of any Last Will and Testament, * * * Power of Attorney, * * * or any other estate planning documents.

Mr. Scire subsequently prepared a new will that the Rhode Island Supreme Court held not rendered invalid because of the guardianship.  The following timeline was relied upon:

  • April 9, 2009:  Court issues order removing right to do estate planning
  • December 13, 2010:  Court grants petition to dismiss temporary guardianship
  • June 9, 2011:  Mr. Scire prepares new estate planning documents
  • July 12, 2012:  The temporary guardian was discharged

Can A Ward Make a Valid Will in Rhode Island?

The guardianship timeline was no bar to the ward’s ability to make a valid new will in Rhode Island:

Accordingly, we hold that, from the date when the Decision and Order terminating the temporary guardianship was signed by the probate judge and entered by the clerk (December 13, 2010), Mr. Scire was no longer under a temporary limited guardianship and was no longer restricted by the conditions that were part of the original decree granting the temporary limited guardianship. See In re Oliveira, 765 A.2d 840, 842 (R.I. 2001) (stating that “a decree [from the Probate Court] becomes effective when it is signed by the judge and entered by the clerk”). Accordingly, in our judgment, there was no impediment to the last will and testament that Mr. Scire executed on June 9, 2011.

For the sake of completeness, we note that, on July 27, 2012, the Probate Court issued a Decision and Order that discharged the temporary limited guardian from his duties. The probate judge reviewed the several accountings submitted by Attorney Vallone and accepted the final accounting submitted by him; he then stated that “the Temporary Guardian is discharged from his bond.” At that point, the temporary limited guardian’s duties and responsibilities came to an end. Most significantly, however, the restriction about engaging in estate planning, including revoking or drafting a will, that had been imposed on the ward (Mr. Scire) had come to an end long before that.

A strongly worded dissent explained that, because the guardian had been replaced with a conservator, the order restricting Mr. Scire’s rights to do estate planning (thus make a will) was still in effect. Because of the pendency of an appeal, the dissent also questioned whether the December 10, 2010 dismissing the temporary guardianship was operative:

One of the issues raised by plaintiffs and sidestepped by the majority is the question of whether the December 13, 2010 decision and order dismissing the temporary guardianship and restricting Scire from entering into contracts, was suspended during the pendency of this appeal. In his July 27, 2012 decision that discharged Attorney Vallone for the second time, the probate judge rejected plaintiffs’ arguments that a suspension was in place. He declared that the provisions of G.L. 1956 § 33-23-2 “regarding suspension of probate court order[s] or decrees pending appeal is enforceable only while the probate court order is on appeal to the appropriate Superior Court” and not the Supreme Court. This is error. Parties have a right to be heard. A dismissal by the Superior Court from a decree of the Probate Court is not a final decision on the merits. See McLaughlin v. Dunlop, 68 R.I. 4, 4-5, 26 A.2d 3, 4-5 (1942) (holding that the operation of a Probate Court decree is suspended until appeal is finally determined). It is my opinion that whether there was a suspension of the December 13, 2010 decision and order of the Probate Court is conclusive and should have been addressed by the majority.

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