An estate plan is designed to give clear instructions about how someone’s assets shall be distributed to his or her beneficiaries upon death. Not every estate plan is created equitably or in good faith, and the law provides recourse for individuals to challenge the legality of the document and its provisions. In this guide we’ll discuss in detail four broad reasons an estate plan might be challenged in probate litigation.
Part One: Formal requirements of an estate plan
Part Two: Undue influence in the creation of estate planning documents
Part Three: Illegitimate signatures
Part Four: Lack of testamentary capacity, or soundness of mind
How Might Estate Plans Be Challenged? Part One: Formal Requirements
Each estate planning document has its own set of formal requirements; these mainly deal with the signing processes and qualifications of the individuals entering into the estate plan. We’ll discuss how when formal requirements are not met, there are grounds for an estate plan to be challenged.
Estate plan requirements of legal capacity
The term legal capacity denotes a person’s authority under law to enter into a contract or any other legal dealing, including estate planning documents. Usually the age requirement tied to legal capacity is 18 years old, although an emancipated minor would have legal capacity in California and most other states.
Another requirement for legal capacity is a sound mind. As such, a person entering into the Will must show requisite capacity, or an understanding that he or she has created a Will, understands what a Will does, understands what makes up the estate, and how it shall be disposed. We’ll discuss this in more detail in a later part in their series.
The legal capacity for creating powers of attorney, trusts and business entities is higher than that to create a will, since these documents are generally more complicated than a Will and may require the creator to understand a contract, financial documents, business relationships, or more advanced strategies to distribute wealth.
Document and signature requirements
Wills must generally be in writing. California does not recognize oral wills. A handwritten Will is a called a holographic Will. The legal term for the creator of a Will is the Testator. A holographic Will is valid in California provided that it can be shown to be the Testator’s handwriting, that the Testator intent is for the document to be a Will, that the Testator is in sound mind, and signed in his or her signature. It is also good practice to date the Will.
The signature on any Will has its own requirements for validity. The signature must be witnessed by two uninterested people at the same time, and they must meet the age and sound mind requirements for legal capacity. A witness who is also a beneficiary is called an interested witness. While having an interested witness does not invalidate a Will, it does expose the validity of the Will to additional burdens and presumptions. While California requires two uninterested witnesses, some states require three witness or a notary to have a valid Will. The good news is that if the Will is valid in the state of residence of the Testator, it will be recognized in other states even if the Will doesn’t meet the standards of the other states.
Errors may invalidate the entire document
During the signing of a Will, things that may seem like trivial formalities at the time can turn into fatal flaws if done incorrectly. For example, if someone forgets a signature, or if the formal requirements for witnesses are not met, then the entire Will may be invalidated. These types of errors happen too frequently when untrained individuals choose to do their own estate planning, and usually come to light when it is too late—after the Testator has died—and can have dramatic repercussions. To avoid costly mistakes that may invalidate your estate plan, it’s always a good idea to consult an experienced Riverside estate planning attorney with expertise in this area of law.
How Might Estate Plans Be Challenged? Part Two: Undue Influence
If a person is subject to undue influence, he or she may be incapable of making a valid estate plan. What does undue influence mean? In layman’s terms, it is someone taking unfair advantage of another, especially when they hold apparent authority over them.
For example, let’s say a caregiver for an elderly person isolates them from their family. He then convinces the elderly person to leave most or all of the elderly person’s assets to the caregiver. If the elder person would not have left the assets to the caregiver but for the pressure exerted by the caregiver, then the caregiving is unduly influencing the senior. This is especially true if the senior is of frail mind or body. Outsiders like the caregiver aren’t the only persons who can exert undue influence. It most often comes from a family member.
Watch out for red flags
There are many warning signs that someone is falling under undue influence. One red flag is if the elderly person is leaving his or her assets in an unusual way. For example, if the elderly person disinherits family members such as children or grandchildren in favor of the caregiver, that’s a sign of possible undue influence.
That’s not to say you can’t choose to leave your assets to whomever you want—you don’t necessarily have to leave your estate divided equally among your children. But if you have an unusual estate plan, you have to be very careful so that the person inheriting your estate can avoid claims of undue influence. It’s always prudent to keep that in mind.
For example, Carol has four children. Her son Martin was her caregiver, but she was estranged from her other children. Carol decides to leave Martin her entire estate for those reasons. When Carol meets with her attorney for her estate plan, Martin should not be involved at all. He should not be in the consultation, or even drive her to the attorney’s office. Carol’s consultation with the estate planning attorney should be confidential, as the attorney documents their meeting. This will protect Carol’s wishes and Martin’s inheritance from a claim of undue influence.
Involving Martin in the estate planning process would pose a risk of Carol’s estate plan being challenged for influence. This is just one of the ways an Estate Plan could be invalidated, and thus not carried out. To avoid this, consult an experienced Estate Planning attorney whose practice is focused on the subject.
Another sign of undue influence is isolation. If a family member or caregiver is preventing the senior from seeing family members, friends, and neighbors and screening phone and mail and that caregiver convinced the senior to leave him or her a substantial portion or all of his or her estate, it is likely that the caregiver has engaged in undue influence.
How Might Estate Plans Be Challenged? Part Three: Illegitimate Signatures
Let’s say you see a signature that you don’t recognize on a deceased relative’s Will or trust or other document, such as a deed. If you suspect the signature is a forgery, you may need to hire a forensic document examiner to prove it. Before you hire an expert, you can take a few steps to try to very if the signature is legitimate .
While some signatures remain identical over the passage of time, it is common for a person’s signature to change for various reasons — because of changes in health, injury, and other age-related causes.
One way to ascertain the uniformity of someone’s signature is by collecting 15 or more samples within two or three years of the signature in question. These samples should span the date of the questionable signature and should illustrate whether the signature has stayed consistent.
Comparing only two or three examples of the person’s signature is not sufficient for comparison; it will not show the range of how the signature was being executed. Even though a signature may look different from known signatures, there may have been different ways that the person was signing their name. Compare the signature in question with known signatures that are from dates close in time; both before and after. Look at details such as stroke direction, the relative size of letters, etc.
For example, in one case a decedent had written and signed a change of beneficiary form. While the signature was very similar to the decedent’s signature made in the course of his normal business dealings, the signature on the change beneficiary was dissimilar from ones that were signed within days of the alleged signature. Further inquiry revealed that the decedent had a stroke before he passed and he could barely write his last name, so his known signatures degraded daily. The signature in question was similar to the signatures written before the stroke, and the evidence showed the decedent was not capable of writing this signature.
Detecting forged signatures
Technology can also be used to forge signatures on on a trust or Will or amendment to either. Be alert to signatures that are identical. Hold the documents to a bright window and place the signatures over each other to check if they are identical. If they are, one may be a copy of the other. Image processing software can easily copy signatures, and color printers can create images that can look like original ink writing. A magnifying glass can be used to examine whether the writing is in ink or a photocopy. A photocopy will consist of cyan, yellow, and magenta dots. The ink line will be a solid color. Close inspection can also show results of pressure points on paper.
If you wish to challenge the validity of an estate planning document there can be severe consequences for doing so. There may be a no contest clause that may cause you to forfeit any inheritance that you might otherwise be entitled. Because of this you should always check with an experience estate planning lawyer because challenging a Will or trust in court. The estate planning attorneys at Sandoval Legacy Group are here to assist you.
How Might Estate Plans Be Challenged? Part Four: Testamentary Capacity
A Will, trust, deed or other estate planning document may be created and executed with a legitimate signature, not under undue influence, without fraud, and meeting all necessary formal requirements. But there is one last point of contention to consider— the testamentary capacity of the person signing the document at the time it was signed. In this context. Testamentary capacity is a legal term that deals with the soundness of mind of the person creating a Will. The soundness of mind, or mental capacity, needed to execute various legal documents varies with the level of complexity of the document.
Different states have different criteria about what testamentary capacity for the creation of a Will entails. Wills generally have the lowest standards for capacity. In California, the law describes this as being mentally competent. What that means is, the person signing the Will must understand the nature of the testamentary act—they know they are signing a Will—and what that Will does.
Additionally, the Testator must understand the nature of their bounty. In other words, they must have a grasp on the size of their wealth and what comprises their estate, whether that’s real and personal property, stocks, investment accounts, or any other items their beneficiaries would receive.
Finally, the Testator must have an awareness of their close family and how their Will impacts those family members and cannot suffer from delusions stemming from a mental disorder.
Common examples of violations of testamentary capacity
Requirements related to testamentary capacity might be violated in several different ways. Say that Joe has a savings account worth upwards of $500,000. However, Joe suffers from dementia and believes his only possessions to be the clothing and personal affects in the assisted living facility where he lives. He signs a Will wherein he gives everything to his caregivers at the assisted living facility. Since Joe doesn’t understand what he actually possesses, his Will may be invalid.
Now consider Francis, who also has a large savings account. She knows the exact amount to the penny. Her children visit her regularly, but due to her dementia, she forgets who they are and that they are her children. She creates a Will and names her favorite staff member at the facility the beneficiary who she sees on a near daily basis. Her Will may be invalid because Francis lacks the capacity for recognizing how the Will impacts her close family.
Let’s say Rodger knows how much he has in his savings account and understands that he intends to leave his estate to his children. One day, Rodger’s scheming younger brother, Phil, tricks Rodger into signing a new Will that names Phil as the beneficiary, telling Rodger that he needed sign on the dotted line to receive a phony cash prize and Rodger had “won.” Phil’s Will would be invalid by showing that Rodger did not have an understanding that he was actually signing a Will.
In each of these cases, the Testator lacks the necessary mental capacity at the time they signed the Will for that Will to be valid. To verify whether someone has the necessary mental capacity to be a Testator, estate planning attorneys can ask them questions about their identity, the date, where they live, and other information by which to gauge their level of awareness.
If the situation warrants it—if there is a contentious family dynamic for example—an attorney may hire a geriatric psychiatrist to evaluate the client. The evaluation would potentially be entered as testimony in a court hearing should the Will become contested.
Whether or not additional steps need to be taken depends in part on the Testator’s intentions. If he or she intends to divide everything equally between his or her children, as would happen under California law, then the need for testing of mental capacity may not be needed. But if the Testator want to leave everything to his or her favorite nephew and disinherit his or her grandchildren – who would inherit by default under California law – and it is anticipated the children may challenge the Will, then an mental examination by one or more specialists may be warranted.
Contact a Riverside Wills and Trusts Attorney
If you have additional questions or concerns about planning your estate or perhaps contesting a Will or trust that may be invalid for the reasons stated above, contact the Sandoval Legacy Group by calling (951) 888-1460 to schedule an appointment.
Have a question? Ask Dennis.
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