Warning Signs of a Potential Estate Battle- Part Deux
This is the second installment to the blog posted May 6th. Here is another warning sign that family may battle over your estate when you are gone.
UNDUE INFLUENCE. Not everyone can have a Will made. First, you have to be of legal age-here in Florida that means 18 years old. Second, you must have legal capacity. Someone who has advanced Alzheimer’s cannot make an enforceable Will since they couldn’t understand the full extent of what the document means and what they are doing.
Also, no one can do a Will for someone else. We routinely get calls from an adult child saying their parent needs a new Will. We try to determine whose idea this is. We need to talk to the parent directly to make certain it is the parent’s idea. If the parent has mental capacity, then he or she should be the one calling to ask about a new Will. Additionally, sometimes the child will say, for example: “Well, I’ve been the one taking care of Mom and my siblings haven’t lifted a finger so Mom wants to leave everything to me.” That may or may not be true. Mom needs to be the one telling us what she truly wants when no one else is there whispering “suggestions” in her ear.
Sometimes a local child with whom the parent has the most contact will try and distance Mom or Dad from other family members. The child could make demands upon the parent regarding terms of the parent’s Will that are more favorable to that child than the others. The child can use subtle and not-so-subtle threats to get the parent to agree (“Do you want me to keep taking you to your doctors’ appointments?”…”Do you want me to continue preparing meals for you?”). The parent could be somewhat mentally compromised from dementia or just vulnerable, feeling like he or she doesn’t have any leverage to argue with the child. Under these circumstances when the parent dies and the Will turns out to have a surprisingly uneven distribution, legal fights are more likely to erupt. Often the litigation costs in such situations can eat up a good deal, if not all, of the estate assets.
It can be difficult to insulate against this type of behavior from a child with a Revocable Trust or Will. In fact most parents are adamant that their adult children are great, all get along with each other and none would ever try to take advantage. Unfortunately, many times that perspective is wrong. If you ARE concerned, there are some things that can be done with your legal documents and you should meet with an estate planning attorney.
(To Be Continued)