The SafeEstates Blog

Mama Needs A New Will!

This year Mother’s Day is Sunday, May 12. This is a great time to celebrate the mothers and grandmothers who know all about us and still love us. We remember the many ways they took care of us when we were young, their words of wisdom, their patience and devotion long after the day we buried them. My mother trusted me and even when I disappointed her she never gave up on me. Let me say a word to the families of elderly mothers.
From time to time a concerned family member contacts us to schedule an appointment for their recently widowed mother to discuss updating her will. Usually the existing estate plan appoints the now deceased husband as executor, power or attorney and health care agent, and the existing will leaves most or all the estate to the now deceased husband. Title of jointly owned investment accounts and real property has passed to mother alone. It is a good time to review and update the plan, so it will work when needed. Often it is appropriate to establish a new revocable trust for its smoother glide path through the transitions of incapacity and death.
In most cases the concerned family member’s actions are completely appropriate; they are not trying to influence or manipulate their mother’s wishes. In most cases the new will distributes the estate equitably among the children and other expected beneficiaries. However, occasionally the family member has a different objective. In every situation, we have safeguards to make certain the new estate plan reflects the will and desires of mother, not the will and desires of the concerned family member. In a will contest, if there is a confidential relationship between the testator and a substantial beneficiary under a will, and the beneficiary actively procured the will, it is presumed the beneficiary unduly influenced the testator in the making of the will. Here are seven facts, proof of which may constitute active procurement of the will:
  1. Presence of the beneficiary at the execution of the new will.
  2. Presence of the beneficiary when the testator expresses a desire to make a new will.
  3. Recommendation by the beneficiary of an attorney to prepare the will.
  4. Knowledge of the contents of the new will before execution.
  5. Giving instructions on preparation of the new will by the beneficiary to the attorney.
  6. Securing witnesses to the new will by the beneficiary.
  7. Safekeeping of the will by the beneficiary following execution.
There is no specific number of these seven factors necessary to show undue influence. We mention them as a caution that there is a difference between helping an elderly person and taking advantage of an elderly person. Also, there are twelve ways to overcome the presumption of undue influence.
If your mother needs to update her estate plan and needs help with the logistics, please contact us. We love working with seniors in transition. Just don’t be offended if we place boundaries on your participation in the process.