New York Estate Planning & Elder Law Blog
Comprehensive estate planning is a responsible way to protect your assets. One of the primary ways you can utilize estate planning to protect your assets is by ensuring that your estate plan accurately reflects how you wish to have your assets distributed in the event of your death. Taking steps toward preventing individuals from contesting your Will is one way to help make sure that your estate will be distributed according to those wishes. A common approach many people take to contesting a Will is by claiming that the testator – or the person that created the Will – made decisions within the Will because of undue influence. While this claim is not always wholly unavoidable, there are steps that you can take to decrease the chances that such a claim will arise.
Understanding Undue Influence
There is nothing wrong with an individual asking for specific property or even a child encouraging a parent to leave specific things to them instead of their siblings. Courts do not typically view these actions as examples of undue influence, even when an individual is fervent about their desires. However, such requests move closer toward undue influence when the testator is in a compromised position such as being mentally or physically ill. For instance, if the child asking for property is the ailing parent’s caregiver, a court may find that repeated requests for certain assets could qualify as undue influence depending on the other circumstances surrounding the request and individuals involved.
Complete the Estate Planning Process Independently
It is not a good idea to engage in estate planning with anyone that will benefit from the estate plan. This gives the appearance that such individuals may have been able to influence your estate planning decisions. While you may want family members or close friends to go through the process with you, it is best that you work independently with an experienced estate planning attorney to create and finalize the details of your estate plan. This gives individuals fewer opportunities to claim that one specific person exerted undue influence upon the testator during the estate planning process.
Talk to Your Family
While you should not involve those that stand to directly or indirectly benefit from your estate plan in the process of creating it, it is important to discuss your wishes and the reasons behind them with individuals that may have questions or concerns over your decisions. Many times, issues that arise because of Wills – including claims of undue influence – can be avoided when people understand the motives behind decisions you may make in your estate plan. By talking to your heirs when you have the chance, you can prevent lingering questions when you are no longer there to answer them.
Establish Your Competency
It is important for you to establish your competency and record proof that you were of sound mind and body when establishing your Will and other tools within your estate plan. Those claiming undue influence will often try to point to a testator’s lack of competency as proof that undue influence had an impact on how assets are to be distributed. By preempting challenges to your competency, you can prevent this question from arising – or at least from becoming a factor a court will consider when determining whether there has been undue influence. By engaging in comprehensive estate planning early on during periods of good physical and mental health, and by having a physical examination close to the time when your Will is finalized, you can memorialize your competency in creating your estate plan.