One of the many reasons an experienced estate planning attorney is the best resource for creating an estate plan, including a Last Will and Testament, Power of Attorney, and Health Care Proxy is the confidence of knowing your estate plan has been properly prepared. People who believe they know better than an experienced lawyer often send their families into a legal, financial, and emotional black hole after they die. The article “Red Flags Indicating a Potentially Invalid Will” from The National Law Journal provides a closer look at why it pays to work with a professional.
When a decedent executes a new Last Will near the end of their life and dramatically changes previous estate plans, there may be trouble ahead. Several issues need to be examined to ensure that the document is valid when this is the case. Strong consideration must be given to whether the person had sufficient capacity to execute the document.
When a person is suffering from an illness or near death, they may be susceptible to the improper influence of people who may cause them to make uncharacteristic changes to their estate plan. Any Last Will drafted within the last few months of a person’s life requires careful review.
If shortly after a person has handed the reins of their financial life to another, using a Power of Attorney and a new Last Will is created, a red flag should be raised, significantly if the Last Will has been changed to benefit this person.
What if a person’s capacity was hovering near the borderline of capacity and incapacity? If a decedent’s mental capacity was questionable when the Last Will was executed, the Last Will might not be valid. A person with legal, mental capacity must understand the assets they own and clearly understand to whom they are bequeathing assets. The standard for this issue is low, but the Last Will may be challenged if the decedent had a degenerative mental condition or a sudden onset of incapacity due to an illness or accident.
If a layperson creates a Last Will or uses an online service to create it and the Last Will does not comply with the state’s estate laws, the Last Will may have technical issues rendering it invalid. When this occurs, it is as if there were no Last Will, and the estate is distributed according to state laws.
An enormous red flag is the presence of any significant changes from the next Last Will to the final Last Will, with no known reason for the change having been made. The new Will may result from changes to mental capacity or undue influence of a third party. An experienced estate planning attorney is the best resource for creating a Last Will. They will be the first to ask why significant changes from a prior Last Will are requested.
Reference: The National Law Journal (March 30, 2022) “Red Flags Indicating a Potentially Invalid Will”
