New York Estate Planning & Elder Law Blog
When considering whether to dispute a person’s will, you should review what factors exist that might suggest a successful basis for challenging the will. While these are an almost unlimited number of factors that exist, some particularly common issues arise concerning wills and resulting challenges.
# 1 – Last-Minute Changes
One of the most commonly encountered situations is when a deceased person executed a will close to the end of life that substantially alters their estate plans. When a will is drafted, an individual who wants to challenge the document should inspect several things to decide whether the document is valid. For estate planning documents created near the end of a person’s life, a detailed analysis should be made regarding whether the person had the adequate mental capacity to execute the document.
Additionally, if a person is dying or experiencing mental disorders, that individual could likely be vulnerable to the influence of other people which causes them to alter the terms of their estate plan. In short, whenever an estate planning document is created in the last part of a person’s life, these documents must be reviewed cautiously.
# 2 – When A Person Unfairly Demonstrates Control
Another situation rife for fraud is when a person gains control of a deceased person’s healthcare and finances and soon after, a new estate plan is created. When a person places himself or herself into the deceased person’s life and it seems they have taken over control over that person’s life, evidence often exists of a confidential relationship.
# 3 – Undue Influence
Another case is when a person gains control of the deceased individual’s finances and health care and a new will is created. When ain individual has placed themselves in the life of a deceased person and it seems that they have gained control of the deceased individual’s life, it often reveals a confidential relationship. If a confidential relationship exists and a will is created that benefits this person, a presumption that a will is invalid could occur. As a result, whenever a person has power of attorney or when a person is overexerting control of a deceased individual, a newly created will should be reviewed.
# 4 – Issues of Mental Capacity
Wills can also be challenged if they were created at the time that a deceased person’s mental capacity was questionable due to either a degenerative condition or an intervening event that resulted in mental incapacity. To adequately execute a will, a deceased individual must have the mental capacity to do so. This means that a person must appreciate the assets they own and must appreciate to whom they want to pass on their assets. Although the standard is low, times exist when a will could be validated as the result of a deceased individual experiencing a degenerative mental condition. When wills are executed under these situations, wills might be challenged due to a lack of mental capacity.
# 5 – Validity and the Law
A difficult situation exists where a deceased person’s lawyer becomes a beneficiary under a new will. These cases can involve times when an attorney drafts a will. In these cases, where the will’s draft becomes a beneficiary, a presumption exists that a will is invalid due to the law. The burden of proof then shifts to the proponent of the will to show its legality by clear and convincing evidence. This is challenging to establish and a will’s content in these cases can be successful.
# 6 – Execution Errors
It’s not rare to experience a will that has problems with its content or how it was executed. Besides issues associated with a will’s creation, technical issues can also arise if a will does not meet the statute addressing will formalities.
# 7 – Unexplained Changes
Yet another issue is if a drastic change occurs involving the deceased individual’s estate plans with no reason concerning why such changes were made. This can be the most alarming sign of all and involves a case when a substantial to a deceased individual’s estate plan and no intervening factors result in such a change. Such a substantial change could suggest problems involving a deceased person’s mental capacity, the presence of undue influence, or some issues involving the deceased individual’s mental condition which resulted in such a substantial change.