YOUR FAMILY, YOUR MONEY: LET THE FIGHTING BEGIN
In the coming years, a tremendous amount of wealth will pass from one generation to the next. As a large percentage of America’s population turns the corner into “old age,” their eventual deaths will cause this wealth-transfer.
Whenever you have money passing from one person to a group of other persons, such as a parent passing money to children, you have a strong probability of in-fighting. Money tends to bring out the worst in people, particularly when the money is someone else’s, that is, “free” money.
The primary vehicle for this imminent wealth-transfer will be a Last Will and Testament. The primary purpose of a Will – as I’m sure you are aware – is to direct how a person’s property passes and to whom, after they expire.
When in-fighting among beneficiaries does occur – for example, someone challenging the amount they received as an inheritance or the lack of receiving an inheritance altogether – the fight often involves an attack on the decedent’s Will. The forlorn beneficiary or would-be beneficiary challenges the validity of the Will in an attempt to have the Will set aside.
It’s probably best if I describe what I mean by this through a hypothetical. Assume that a woman (I’ll call her “Mary”) passes away who had two children, a son and a daughter. Assume that during the course of her life, Mary made four Wills. Assume that she made one of her Wills when her children were babies, one when the children were adults and Mary was in her 60’s, and one when Mary’s husband passed away. The last Will that Mary made was six months before her passing.
Assume further that during the last two years of her life, Mary lived with her daughter and that the daughter provided care to Mary, whose health had been failing for the last two years of her life. While her daughter provided substantial assistance to her, Mary’s son provided little to no assistance during the last two years of her life and, in fact, showed little interest in Mary.
Finally, assume that all of Mary’s Wills with the exception of the last Will left her estate to her two children equally and that the last Will left the entire estate to her daughter, disinheriting the son.
The son, obviously, wouldn’t be pleased with his mother’s decision to disinherit him. And, he may “challenge” the Will in order to have it set aside. If the son is successful in setting aside his mother’s Last Will, the estate would have to probate the next to last Will, and if you recall, the next to last Will – like all the prior Wills – left everything to the mother’s two children equally. That means that the son would share equally in the estate with his sister.
There are two main grounds for attacking a Will, and one or both of these grounds is used in most every challenge to a Will. One ground for attack is that the person who made the Will lacked “testamentary capacity.” In order to sign a Will, a person must have a certain level of mental capacity. If they lack that level of mental capacity, they can’t make a Will.
In order to have “testamentary capacity,” a person must know who her relatives are, she must know the nature of her assets, and she must form a dispositive plan for her assets after her death. If a person does not know these things or cannot formulate a plan to dispose of her assets, then a person cannot make a Will. If the person lacked this level of mental capacity when she signed her Will, then her Will is subject to being challenged and set aside.
The second major ground for attacking a Will is “undue influence.” The son might claim that the daughter unduly influenced the mother to change her Will in order to disinherit the son. In fact, given the “confidential relationship” that arose from the mother/daughter living arrangement prior to her death and the care that the daughter provided to the mother and the mother’s dependency on the daughter – the burden would be on the daughter to disprove the existence of undue influence.
If a Will is the product of undue influence, then it wouldn’t be the person’s Will, it’s someone else’s Will, i.e., the Will of the person who exerted the undue influence over the person who signed the Will. Once again, if the mother’s Will were proven to be the product of undue influence, the Will would be set aside.
There are methods to protect against Will challenges, but it is best to consult with a professional in order to protect your Will from challenge.