Winter 2008

Avoiding Future Challenges to the Estate Plan
By Donald D. Vanarelli, Esq
Aging Well
Vol. 1 No. 1

An older widower has an unmarried daughter who moves in with and cares for him during the last two years of his life. He also has two sons, but they’re both married, work full-time, and are unable to provide meaningful assistance to him. The daughter arranges and takes her father to all of his appointments. When he decides he wants to make a will, she drives him to a local attorney she finds in the phone book. The father never discusses his will with his children. But when he dies, they discover he left most of the estate to his daughter.

The above facts may illustrate the actions of a loving, concerned child for her father and her father’s acknowledgment for that devotion. But they may also provide the disappointed sons with a basis for challenging the will by claiming their sister unduly influenced her frail father into leaving her more than he have would have done freely.

When developing an estate plan, a difficult issue often overlooked or purposely ignored by elders is the possibility that, after their death, their plan could be challenged by those who expected more from their last will and testament. For example, decisions not to leave estates equally divided among all the children could lead those treated less favorably to contest the will by claiming it was the product of undue influence or that the elder lacked the mental capacity to execute it (testamentary capacity).

Paradoxically, the same set of facts could be seen by some as justifying an unequal distribution and by others as proof of undue influence. Encouraging older adults to consider these issues now can prevent the emotional and financial devastation that often accompanies a will contest.

Ignoring or Recognizing the Risk
Sometimes, the possibility of will contests isn’t recognized by elders. They may assume their children will understand that more money is going to the child with greater need or who helped them in their later years. Often, unexplained disparate treatment of children by a parent can cause the less favored child to feel deceived and/or believe the favored child has played a role in that deceit.

Older adults may also assume will challenges only happen with huge estates, but they occur with all estate sizes. One study found that smaller estates tend to “generate at least as much, if not more, controversy than larger estates.” Since will challenges are typically rooted in deep-seated family histories, distraught participants often believe they’re fighting for the principle of the matter, which leads them to disregard the reality that the financial costs of litigation may be greatly disproportionate to the size of the estate.

At other times, elders recognize the possibility that their children may challenge their will. But rather than confronting this, they choose to ignore it. They may cling to the hope that a challenge won’t occur or their children can work it out after their parents are gone. They may believe raising the issue of their testamentary plan will cause buried family problems to surface.

In other words, while older adults may assume or hope that executing a last will and testament will be the final word on how their estate will be disposed of, this may not be the case. Litigation costs can nearly deplete an estate and irretrievably damage family relationships.

Determining Testamentary Capacity
As a general rule, people possess the capacity to make a valid will if they are of age and sound mind. This requires being capable of understanding the general nature and extent of their estate, the person(s) who are the natural inheritors of their bounty, and the substance of their estate plan.

This standard isn’t considered demanding. However, a person whose capacity is diminished due to age or illness is generally considered more vulnerable, thus bolstering a claim of undue influence, which is defined as influence exerted on the testator (the person who has made the will) that overcomes the testator’s free agency, such that the testator’s will reflects another person’s wishes rather than the true wishes of the testator.

Taking Steps Now to Avoid Contests Later
As the opening story illustrates, cases involving undue influence are highly fact sensitive. Therefore, it’s important to encourage elders to address both the legal and emotional issues involved in making an estate plan and to consider engaging the services of a lawyer familiar with the issues.

Experienced estate planning lawyers will employ a variety of tools to guard against future will challenges. The elder or infirm testator may be examined by a physician to establish testamentary capacity. Lawyers may employ a checklist to be included in their files to ensure and document that key issues and questions have been considered and addressed at or before the will signing. They recognize that those who have an interest in the elder’s estate plan—for example, the child he or she intends to favor in the will—should never be used as a witness to the will because using an “interested” witness could later raise an issue of undue influence. In fact, the attendance of a family member or other interested person at the will signing should be avoided.

Another device that can be used is a statement (written or videotaped) by the testator that outlines his or her estate planning objectives. This provides evidence of the testator’s capacity and intent, explains the rationale for his or her plan, and negates an inference that the plan was ill considered or the result of someone else’s influence.

Finally, elders can simply engage in a frank dialogue with their children, either privately or with the assistance of a counselor, advisor, mediator, or lawyer, and explain the rationale behind their estate plan.

Addressing these issues allows attainable resolution regarding areas of conflict, while allowing elders and their families to move forward with relationships that may be not only preserved but strengthened by the process.

— Donald D. Vanarelli, Esq, is a certified elder law attorney, accredited professional mediator, and founding member of the Elder Mediation Center.