THE WILL-WRITING PROJECT
Mary Ann DiGiovanni
The rationale for exploring the idea of will-writing for people who are old and mentally retarded centers on the concept of normalization. Under this concept, people who are mentally retarded are provided with experiences "which are as culturally normative as possible, in order to establish and/or maintain personal behaviors and characteristics which are as culturally normative as possible." 1 The staff of the Kennedy Aging Project believed that participation in will-writing can contribute to clients' personal dignity and self-esteem. The process provides opportunities for the client to discuss death, loss, significant relationships in her life, and the notion of survivorship. The will-writing process gives permission and legitimacy for the client to discuss these subjects.
This chapter will first briefly describe how the will-writing project evolved. The second part of the chapter will outline the "will-writing process" as developed by participating Aging Project staff.
An attorney, a law student, and a clinical psychologist participated in this project. The plan was to involve these staff members in all phases of will-writing, including all meetings with the client, from the original interview through the actual writing of the will.
The initial stages of research and discussion focused on legal requirements under Massachusetts law (Mass. Gen. Law Ch. 191, Sec. 1.). The primary legal considerations were testamentary capacity, matters of attorney-client privilege, and the manner by which the will-writing service was procured and would unfold. The staff determined that clients without guardians (presumed competent) would become the first candidates for the service.
As to testamentary capacity, the standard that a proponent of a will must meet was set forth in Tamicone v. Cummings, (166 N.E.2d 737, 740 ( Mass. 1980)). In that case, the court stated,