Preventive Measures Can Be Taken to Avoid

By Bernard Krooks

Regardless of how well thought out an estate plan may be, the possibility exists that a family member will challenge it. As the modern family becomes increasingly complex and diverse, and asset disposition becomes more complicated, it may be more difficult to please all beneficiaries. Individuals wishing to ensure that their wishes be carried out in the event of a contest should take steps to cement their plans.

Beneficiaries who feel unfairly treated by a Last Will and Testament, or individuals who are not recognized at all, may challenge the document by contesting the Will. Wills may be contested if:

• The author of the Will lacked testamentary capacity at the time it was signed;
• Parts of the Will have been changed after signing;
• The author of the Will suffered from undue influence of others;
• The Will has been revoked.

Testamentary capacity refers to the mental state of the testator and the capability of the testator to legally execute a Will. A person possesses testamentary capacity, and therefore the ability to draft a valid Will, if s/he is over 18 and of sound mind. The legal framework for determining if an individual is “of sound mind” is based on two fundamental components: the ability to comprehend the relevant facts and nature of the business at hand and an understanding of the consequences of decisions regarding asset distribution.

Testamentary capacity is determined on a situational basis and the standard is not thought to be demanding. An individual showing signs of dementia or other diminished mental capacity may still be capable of publishing a valid Will. An individual who can be shown to have a diminished mental capacity at the time of the creation and signing of the Will, however, may be more vulnerable to claims of undue influence.

Undue influence is a term that refers to physical or mental pressure that influences the testator in such a way as to prevent him or her from acting freely. Determining undue influence relies on an investigation into whether or not “suspicious circumstances” surround the division of assets and/or signing of the Will document. Some examples of suspicious circumstances may include the dependence of the testator on a particular beneficiary for daily needs, a beneficiary becoming involved in arranging for the preparation of a Will, a beneficiary being present while the Will is being created or signed, or a beneficiary hiding the Will and/or preventing access to the testator.

It is important to act proactively to prevent challenges to a Will, particularly if it is suspected that certain family members may not be satisfied with its terms. Do not allow an individual who has a vested interest to be used as a witness to the Will, as this may provoke a challenge of undue influence. In fact, it is best that any family member or person with interest in the Will not be present at the signing at all.

In addition, the testator can provide a detailed accounting of assets and beneficiaries to prove knowledge of the facts and help show his or her actions were intentional. The testator may also want to explain in writing the rationale behind his or her decisions, in particular any actions that are a significant deviation from previously expressed wishes. If there are concerns that mental capacity may become an issue, the testator can be evaluated by a psychiatrist.

The decisions involved in developing an estate plan are personal and should be respected by family members. Unfortunately, this is not always the case. Whenever possible, taking action to prevent future challenges to an estate plan can help ensure that your wishes be carried out smoothly.