But Momma Promised The Farm To Me…?
by Eric M. Schorr
People are living longer than ever before. Longer life spans, however, present unique problems in terms of decreased mobility, decreased capacity and increased medical expenses. The care of aging parents frequently falls to their children, and often, one child takes on a greater role in caring for the dependent parent.
Sometimes, as a means of compensating or recognizing the child who takes on these responsibilities (often at the expense of a career or family), the parent rewards that child with a larger share of his estate. Sometimes, the parent’s wishes are made known beforehand, but when a parent’s intention to favor one child over the others is discovered only after the parent’s death, the other children often feel slighted. Was that the parent’s intention, or was something amiss?
People have a right to change their minds – and their Wills. They also have a right to name whomever they choose as a legatee or beneficiary, even if that person is not related. But what can you do if you suspect foul play, or that a decedent’s Will does not truly reflect his intentions? Louisiana law provides specific reasons for which a Will can be set aside:
WAS THE WILL PROPERLY EXECUTED?
Louisiana law is very specific in the required formalities for Wills. For instance, a valid “Notarial Will” must be signed on each and every page, it must be executed before a Notary Public and two witnesses, and they, along with the Testator, must be present while witness each other sign the document. If the Notary, one of the witnesses, or the Testator leaves the room while the others are signing, the Will is invalid. A Notarial Will must likewise contain a very specific “Attestation Clause.”
DID THE TESTATOR HAVE CAPACITY?
Lack of capacity may be the result of a mental infirmity or medication. However, diminishing capacity, in and of itself, is not sufficient to nullify a Will. The party challenging the Will bears the burden of proving (by clear and convincing evidence) that, at the time the Will was executed, the Testator was unable to understand, generally, the effects of his Will.
WAS THE WILL A RESULT OF UNDUE INFLUENCE?
Did someone threaten to withhold care or threaten to harm the Testator unless he was made a beneficiary? Did one child turn the Testator against the others, or did he tell the Testator that the other children planned to “put him in a home”? Each of these could constitute undue influence or duress if it resulted in the Testator changing his Will.
Although challenging a Will is never easy, your chances of winning a Will contest are greater if the subject Will was made shortly before the Testator’s death. Lack of capacity and undue influence can be difficult to prove. Both challenges could involve medical testimony, a lengthy discovery process, and acrimonious litigation. So, if you think you have proper grounds to challenge a Will, you should seek the advice of an experienced and qualified estate planning attorney.
This article was originally published in Senior Living Magazine.