New York Estate Planning & Elder Law Blog
A Will is far more likely to be challenged during probate if significant last-minute changes were made to the legal document. This is to be expected considering that the main causes for challenge–undue influence, lack of capacity, improper procedure–are far more likely to occur when an individual is older and nearing death.
But that does not mean that all Will changes should be avoided later in life. Often is is essential to make changes to reflect one true wishes and best protect assets. It is simply critical to made those changes carefully and with an eye toward the ways to minimizing the risk of a Will contest.
Act Prudently with Deathbed Changes
A Wall Street Journal story last week discussed these risks, noting that it is only when death is near that many suddenly have a clearer idea of how they want their legacy to live on. They often seek to change their Will to reflect that new vision. But without accounting for the risks of deathbed revisions, this may open the door for prolonged court battles.
For one thing, it is critical to have the aide of a neutral party to actually draft the last-minute revisions. That is because the appearance of undue influence or even fraud are higher when the changes are managed by a family member or other party who is benefitting from any late change. History is littered with cases of Wills which are thrown out because last-minute changes benefited new parties who were not recognized in previous versions. These changes may very well be motivated by good intentions and reflect the true wishes of the testator. But never forget that when planning defensively, the only thing that matters is what can be proven later on, not simply was is true at the time.
Similarly, health issues must be accounted for if the senior suffers from dementia, Alzheimers, had a stroke or otherwise may lack capacity to make the change. At those times, it may be worthwhile to have a mental competency examination performed and documented so that later attempts to challenge capacity can be defeated with real evidence of the individual’s mental health.
Of course, do not forget that other tools exists beyond a Will, like trusts, which can offer superior flexibility and protection without many of the risks for challenge and feuding. Trusts are useful for families throughout New York with many different levels of wealth. Consider contacting an estate planning attorney to learn more about your options.