Are You of Sound Mind? - Planning for Potential Contests to Your Estate
I just finished the new John Grisham book Sycamore Row. I am not normally a big fan of legal fiction because I spend so much of each day in legal reality; however, this story intrigued me because it involved a dispute over an estate. The story begins when a wealthy businessman, Seth Hubbard, who is dying from cancer, commits suicide. Quickly we learn that just days before his death he had revoked a will that had been carefully prepared to provide significant tax benefits and replaced it with what is known as a “holographic” will. A holographic will is a will that is in the handwriting of the person making the will (the Testator) and the will signed by the Testator generally without witnesses.In the story, the holographic will inflammatorily disinherits Hubbard’s children and grandchildren and gives everything to his housekeeper. What ensues is a great story of intrigue that centers on whether or not Hubbard had something called “testamentary capacity” or if he had been unduly influenced. According to the law in most states, a person must be of “sound mind” to make a will. Generally, the person making the will is presumed to be of sound mind and the burden falls to those opposing the will to establish either a lack of testamentary capacity or that the person had been unduly influenced. In a will contest where testamentary capacity is at issue, we are usually looking to answer just a few things:· Does the person know what they own;· Does the person know who the natural beneficiaries are;· Does the person understand the disposition they are making; and· Does the person understand the plan?Undue influence is not just influence or suggestion, but rather there must be substantial proof of an overpowering of the Testator’s will to the extent that he would not have done what he did had he been free of such a controlling influence.Writing the natural heirs out of the will in favor of another person who would not naturally inherit, can raise concerns about testamentary capacity and undue influence. If you want to avoid this type of dispute in your estate, there are a few things you can do:1. Have your estate planning prepared by a properly trained attorney. The attorney can ensure that the documents are done in compliance with local law and can also act as a witness to your capacity.2. Meet with the attorney and sign the documents outside of the presence of the beneficiaries.3. If you are older, you could consider visiting your physician and have her make a record of your capacity.4. Provide for a gift to your natural heirs and provide that if they challenge the will they do not receive anything.I won’t tell you how things turn out for the Hubbard family; it is a great read and provides a good demonstration of the expensive litigation that can ensue from do it yourself planning methods.