If a family is dragged into a drawn-out court battle over an estate planning issue, chances are it is a “will contest.” This phrase refers colloquially to cases where one party claims that something is wrong with a will and that the legal document should be thrown out. It goes without saying that preventing this very scenario is exactly why you should talk with planning professionals as early as possible. An attorney can explain how alternative tools–like trusts–can be used to almost eliminate the risk of a will contest entirely. Alternatively, the lawyer can explain the common challenges to a will and the way to guard against them.
Guarding Against A Will Contest
Essentially, there are four main ways that a will may be rejected by a court following a challenge:
1) Failure to follow proper signature requirements 2) If the Testator (the person who makes the will) did not have the capacity to sign it 3) If fraud was involved (i.e. the Testator did not even know they were signing a will)
4) If the Testator was unduly influenced
Many different scenarios may make it more or less likely that a will might be challenged on one of these grounds. One of the most common scenarios for New Yorkers today is when the Testator suffers from dementia. If you or a loved one is facing some cognitive conditions, it is imperative to act very carefully when making an estate plan, perhaps adding a few steps to minimize the risk that one’s condition will be used down the road to challenge the will.
Every case is slightly different, and it is impossible to note what steps should be taken in every case. However, when figuring out how to guard against challenge when a Testator is suffering from some cognitive challenges, it is helpful to consider what issues will be be considered.
For example, consider these questions:
*Who actually wrote the will? An attorney? Another family member?
*What exact state was the Testator in when the will was signed? Was he or she taking medication at the time? Did they have any episodes that led to hospitalization before or after?
*Are there any signs in the senior’s life which indicate the extent of their capabilities? Were they still driving to book club? Could they make their own meals?
Of course, that above list is just a snippet of many questions that may be asked to gauge whether one has testamentary capacity to sign a will. For tailored guidance in your case, be sure to reach out to a NY estate planning attorney.