Do You Have a Difficult Family?
Twenty-two cousins fought with all of the other individuals claiming a share of the estate. In the end, each will was ruled invalid and the 22 cousins and the federal government divided the estate.
Your estate may not be worth $2.5 billion, but if you have a reasonable level of resources and a difficult family member, someone could "contest" your will or make a claim against your estate if you do not have a will. This may occur because one of your family members or potential heirs might believe that he or she is entitled to receive a larger portion of the estate. Some beneficiaries will receive a larger share if your will is valid and some will gain if the will is determined invalid. The difficult person is likely to sue if he or she can gain a larger part of your estate through legal action.
How Will a Difficult Person Attack Your Plan?
There are several ways to contest a will. An heir may claim the "testator" (the person who signed the will) lacks capacity, that there were unqualified or improper witnesses, or that there has been undue influence that invalidates the will.
What is Capacity?
Capacity is a legal term that means the testator was qualified to sign a will. Fortunately, someone doesn't lose capacity simply because of a "senior moment" or a brief period of forgetfulness. Rather, capacity is defined as (i) the ability to understand that the will transfers the estate, (ii) knowledge of the general type and nature of the property, and (iii) the ability to identify the family members who are potential heirs.
What Questions May the Attorney Ask?
Your attorney will be very interested in making certain that your will is properly signed and qualified to transfer your property. He or she may ask general questions to enable you to show that you're qualified to sign the will. The questions may include, "Why are you here?" and "What do you own?" and "Who are the members of your family?"
You should briefly respond to each of the questions. The attorney and the witnesses will then be able to testify about your capacity if a difficult person claims that you were not capable of signing a proper will.
You should be able to affirm that you understand a will transfers your property and in a general way identify the major assets in your estate. You do not need to explain specifically all the property or the exact value but a general explanation is necessary.
The people you describe as potential heirs will typically be your spouse, children, brothers, sisters, grandchildren, other relatives and special friends. If you are specifically including or excluding someone, you may wish to mention that fact.
In some cases, a doctor is asked to provide supporting information about capacity. He or she may describe your general mental and physical condition and any medications you are currently taking.
The key day is the date you actually sign the will. Even if you just have a "lucid interval" on that day, you generally will be qualified to sign the will. The attorney and witnesses may later be called to testify and describe your general conduct and statements to assist the court in determining whether you were qualified on that date to sign the will.
What is Undue Influence?
As we become more senior, we tend to have less physical and mental strength. In very senior years, we may have a level of weakness that permits another person to impose their will upon us. The action of a child or caregiver in causing us to sign a will that reflects his or her intent rather than our intent is called "undue influence."
Your child or caregiver may encourage you to sign a new will that would disinherit other children or other beneficiaries and give the estate to him or her. In some cases, the child or caregiver has paid the attorney for a new will that makes him or her the sole beneficiary.
What are the Flags to Watch For?
There are three specific flags or conditions that you should understand. First, if you have physical and mental weakness, you may be more vulnerable. Second, be cautious if the influencer approaches you and offers to obtain the document or pay the attorney. Third, it is a red flag if the influencer is going to receive a larger than normal benefit under the new will.
Is it Acceptable to Sign Your Will if You are in the Hospital?
Because many individuals discover a need to update their will after they become ill, it is very common to sign a will or trust in the hospital. However, there are some precautions or steps that should be taken.
First, when someone is signing the will or trust, their attorney, witnesses and medical staff may be in the room, but their beneficiaries should not be in their presence. The advisors and medical staff in the room are there to protect the welfare of the person who is signing and should be objective because they are not receiving a bequest or inheritance.
Second, it is important for the person who is signing the will to be able to explain to the attorney, the witnesses and any medical staff present that he or she understands the will, has thought through the reasons for rewriting the will and to disclose the name of any person who suggested that the will should be rewritten.
While these steps cannot guarantee that a difficult person will not file a claim, these steps can significantly decrease the risk of a will contest.
Does a No-contest Clause Work?
Many states permit the inclusion of a "no-contest clause" into a will. This clause states that if an heir contests the will, he or she will lose their inheritance altogether.
No-contest clauses have often been upheld. One strategy that some individuals use is to provide a reasonable bequest in the will for a difficult heir. If the child or other heir contests the will and loses, he or she will be giving up some meaningful benefit. This may discourage the child or other heir from contesting the will.
Your will is designed to carry out your intent. If you sign a new will in your very senior years when you are not in the strongest mental and physical health, it can still be valid and upheld. However, taking a few common sense steps to increase the likelihood that there will not be a contest by a difficult family member is quite easy and good judgment on your part.
Published July 1, 2022
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