New York Estate Planning & Elder Law Blog
After a loved one passes away and you learn about that person’s estate plan for the first time, it’s common to encounter various emotions as you respond to the terms of the plan including shock, sadness, or even anger. Based on the estate plan’s appointments, beneficiaries, or other times, you might be left wondering if you will be able to raise any type of claim to challenge the terms of the estate plan. This article reviews some of the basics that you will need to follow if you plan on raising a strategy based on either undue influence or incapacity.
# 1 – Not Everyone Can Challenge a Will
Beneficiaries do not acquire protected interests in a person’s property until after that person passes away. Often, a person cannot attack a will until after that person’s death. This is because the person who creates the estate plan can theoretically alter the terms of an estate plan any time before the creator passes away. If a person is interested in challenging a Durable Power of Attorney or Health Care Proxy, however, a person can challenge these documents during a person’s lifetime. No restriction exists regarding who can challenge a person’s will. Often, one or more family members of the person who created the estate plan can challenge the document’s terms.
# 2 – The Basics for Raising These Challenges
In New York and many other states, a person above the age of eighteen years old and of sound mind can create a will. “Sound mind” means “testamentary capacity”. The person who creates a will cannot be experiencing any type of delusion and must appreciate a will’s purpose as well as the nature of that individual’s property and the people who could claim these assets at the time the person creates a will. A presumption exists that a person is of sound mind, even though a person might possess testamentary capacity at any given moment and lack it at other periods. This presumption disappears, however, when a person presents evidence regarding a lack of testamentary capacity. In this situation, the burden then shifts to the person who created the will to show that they had the necessary capacity at the time the will was executed.
# 3 – How Undue Influence Challenges Are Made
Even if a person satisfies the standard for testamentary capacity, you might try to invalidate a person’s will based on undue influence. This type of argument is supported by one person’s improper influence on the person who created the estate plan to either create or revise the estate plan in a manner that unfairly advantages the influencer. To prove undue influence, four elements must be shown: the occurrence of an unnatural disposition, a person vulnerable to undue influence that could be taken advantage of by another person, a chance to exercise undue influence, and that the other person has used this chance to gain the assets in contest through improper means.