Blog Author: Tereina Stidd, J.D., LL.M. (Tax), Associate Director of Education,
American Academy of Estate Planning Attorneys, Inc.
Attorneys often answer questions relating to the validity of Estate Planning documents. Sometimes, the testator or grantor simply wants to ensure that the documents carry out their last wishes. Other times, a beneficiary questions the terms or amount of their inheritance. Finally, loved ones have concerns that the Estate Plan does not accurately reflect the true intent of the testator. Let’s look at what could invalidate a Will or Trust.
If a beneficiary, loved one, or other trusted source exerts undue influence on the testator, that might invalidate the Will. Simple enough to explain but understanding what constitutes undue influence requires a closer look at the behavior. The American Bar Association indicates that undue influence occurs when an individual is a fiduciary capacity or other confidential relationship substitutes their own desires for that of the influenced person’s desires. Put another way, a person influenced the testator in such a way that convinced the testator to alter their estate plan, usually in favor of the individual exerting the undue influence and to the detriment of the testator’s other beneficiaries. Each state lists certain factors that indicate the presence of undue influence, such as intimidation, physical threat, or coercion. Perpetrators of undue influence use subtle tactics and are often close to the testator. For example, the influencer may stop providing transportation to the testator or otherwise cause the testator to fear for their health and well-being. The emergence of elder abuse and mandatory reporting thereof has helped shine a light on the existence of undue influence and gives families a way to protect against it.
In addition to undue influence, if the testator lacks capacity at the Will or Trust’s execution, then that invalidates the documents. Lack of capacity means that the testator executed the Will or Trust at a time when such a testator lacked a sound mind. Many a litigant has tried and failed to prove a lack of capacity, even though it’s common. Frighteningly, the Alzheimer’s Association estimates that nearly 6 million individuals have Alzheimer’s disease in the United States. This disease affects the mind at a time when the elderly individual may have other health issues. Most states require the testator to understand the nature and extent of their property, the natural objects of their bounty, the individuals who would naturally benefit from their estate, and finally, the effect of their Estate Plan. If the testator understands those things, then the testator has a sound mind. If the testator lacks that understanding most of the time but executes the Will or Trust at a time of clarity, then the Will or Trust is valid. Most states presume competence to make a Will or Trust and place the burden on the contesting party to prove that the testator or grantor lacked capacity. Note that a court may consider other factors, such as an unnatural distribution, as evidence of lack of capacity.
Aside from undue influence or lack of capacity, any Will or Trust not executed with the requisite formalities is invalid. Most states require the presence of two witnesses who watch the testator sign, all of whom sign in the presence of a Notary Public. Although Trusts do not always require that level of formality, sometimes the testamentary provisions of a Trust will not work unless they are executed with the same formalities as required for Wills.
Finally, any Will or Trust resulting from fraud, coercion, or forgery is invalid. If an individual intentionally misrepresents certain facts to the testator who relies upon the facts in making the Will, that’s fraud in the inducement. Common examples of this are when someone tells the testator that a particular beneficiary no longer needs the money because they have enough of their own or advises the testator that a beneficiary is stealing from the testator or speaking ill of them to other family members. If someone were to present a Will to the testator, while telling the testator that they were signing a Deed, that’s fraud in the factum. If someone else signs the testator’s name without their knowledge and without following the state statutes, then the Will is invalid.
While these examples seem like they are out of a novel or movie, these things happen often. For example, Brooke Astor, a New York City philanthropist was abused and exploited by her only son who isolated and manipulated her to gain control of her assets, including millions of dollars that she wanted to give to charities. Brooke’s physical and cognitive impairment, dependency upon her son, and isolation made her susceptible to undue influence. If you have concerns about a parent or loved one and their ability to create a plan without influence, raise the issue with a qualified Estate Planning attorney. Likewise, if you worry that your plan may be invalid, it’s a great time to contact an attorney to review and update the plan. Making sure that your assets get to the intended beneficiaries requires more than just good documents. It requires an attorney well-versed in the issues raised above.
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