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Putting Off Making Your Will? You Might Be Hurting Its Chances of Survival

Notepad that reads make a will

It can be a bit grim to spend hours considering what will happen to your hard-earned savings when you die. For that reason, many people put off creating their estate plan until late in their lives. Not only does this strategy fail to account for the possibility that you’ll be taken before your time in an accident, it may also leave your will vulnerable to attacks from disgruntled heirs based on claims of incompetence or undue influence. Learn more below about how a delay in creating your will could result in a drawn-out will contest, and speak with a seasoned estate planning attorney about creating a will that can stand up to challenges.

New York wills that have been properly drafted, witnessed and signed are presumed by the New York Surrogate Court to be valid and binding ways to dictate how the deceased person’s (testator’s) possessions should be distributed. If for some reason an heir (or someone who believed that they should have been an heir) wishes to challenge the validity of the will, there are several claims they might file with the court in an attempt to have the will revoked.

When the testator (i.e., the person who signed the will) is older or seriously ill when the challenged will was made, the challenger will likely argue:

 

  • Lack of mental capacity: The challenger may try to argue that the testator couldn’t understand the nature of the gift they were making in their will, that they didn’t know the identities of their likely heirs (children, grandchildren, or spouses), or that they didn’t know or understand what property they owned. The challenger may try to show evidence that the testator had become senile or suffered from signs of dementia in their old age to show that they were not mentally fit enough to draft their will when they did.

 

  • Undue influence: A challenger will claim that the testator was a victim of undue influence by arguing that a beneficiary of the will committed fraud, manipulation, coercion, or otherwise overcame the testator’s free will in getting a particular gift written into the will. Challengers may use evidence of a close, confidential relationship between the testator and the beneficiary to show that they had an opportunity to pressure the testator, as well as evidence that the testator was ill or otherwise in a weakened state, to prove these claims.

 

Don’t wait until you’re ill or very elderly to write a will, making your estate plan vulnerable to these types of attacks. While these claims are difficult to prove, they are costly and time-consuming for your heirs to successfully defend even when they’re baseless.

If you’re a New York resident who has not yet created an estate plan, contact the knowledgeable and seasoned Poughkeepsie wills & trusts attorneys at Van DeWater & Van DeWater for a consultation, at 845-243-5214.

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