Planning for Incapacity and Minimizing Allegations of Undue Influence
Posted on: November 24th, 2015
By Hallie L. Zobel, Esq.
If you have an aging loved one who is beginning to show signs of cognitive impairment, National Alzheimer’s Awareness Month is the perfect time to explore whether his/her estate planning documents are in order.
Each year at this time we like to remind our “more senior clients” and their family members how critical it is to ensure that one’s legal documents are up to date prior to the onset of cognitive decline.
Executing estate planning documents while one has full legal capacity (being of sound mind) not only allows the individual to be mindfully involved in shaping his/her legacy for future generations, but it also minimizes the potential for future litigation by heirs who might later question the plan’s validity.
But it’s not enough simply to have a plan in place. We also tell clients that the provisions in one’s estate plan should be communicated to one’s heirs and preferably not come as a complete surprise. Consider calling a family meeting to discuss your legacy objectives and how your wishes impact your heirs.
A case in point involved a client whose husband suffered from dementia. Following his death, the wife learned that her husband had left the bulk of his estate to a non-profit organization. Given the close relationship she had with her husband, this came as a complete shock. While she was aware of her husband’s dedication to the organization, she found it difficult to believe that he had the legal capacity to make such a decision. This caused her to believe that the organization exercised undue influence over her husband because of his dementia, and she is challenging his will in probate court.
Unfortunately, these types of situations are all too common. Clients with a deteriorating mental state, such as dementia, are often susceptible to pressure as it relates to provisions in their will or estate plan, and thus become potentially subject to undue influence.
That’s why we like to remind clients to sit down with family members to discuss their wishes in order to minimize chaos and fights among heirs once they are gone. If you are leaving assets in unequal shares to your children, or in a way that may confuse and disappoint a spouse or children, it is particularly important to head off allegations of undue influence by explaining your rationale while you are still able.
For more information regarding “undue influence,” please read my blog article, Undue Influence: How to Spot When Assistance Crosses the Line. If you suspect an aging loved one may be experiencing signs of cognitive decline, please read Merrell Bailey’s article, The Top 10 Warning Signs Your Elders May Need Help.