Changing Your Will or Trust - Challenges and Protections

Wednesday, September 2, 2015

    Sometimes a person wants to draft a new will or trust, or make changes to their existing estate plan including their existing will or trust.

    In most cases, this should not be a problem.

    However, because of potential challenges relating to the ways that allegations of elder abuse and undue influence are handled, sometimes it can be very helpful to take steps to protect one’s changes.

    In particular, it appears to be becoming increasingly likely that claims of undue influence may later be made.  This is particularly true for seniors who are 65 or older at the time when they change their wills, trusts, or estate plans, or even when they make large gifts during their lifetime.

    A skilled elder law attorney may be able to suggest a wide variety of paths forward that may help protect the new estate plan.  In some cases, this may add extra expenses, as additional information is gathered, as other professionals become involved, and as contemporaneous affidavits are prepared, and the like.

    In some cases, the additional professionals may be medical professionals, but in many cases the additional professionals are more likely to be other legal professionals, financial advisors, or the like.  In some cases, with the client’s permission, other people who are involved in the life of the person who is changing his or her will, trust, or estate plan may also be called on to help develop the record in an effort to forestall a future possible claim of elder abuse or the like.

    It is important to remember that such claims can sometimes be brought even against the wills, trusts, or estate plans of people who were clearly competent at the time that the estate plan was changed, or the lifetime gift was made.

    It is also important to remember that such claims can sometimes be brought by people who are hurt by the change in the will, trust, or other estate planning document, even when the reasons for the change seem to be completely reasonable.  It also sometimes comes as a surprise that people who seem objectively to be people one would expect to be cut out of a will or trust are able to bring such claims.

    As noted above, in such situations, which may be more common than the average person recognizes, a skilled elder law lawyer can often find paths forward that may help to support a new estate plan, or that may ward off a subsequent attack to the new estate plan.  

    In some cases, however, it may be difficult to craft any adequate protection, especially if time is short, or if there is any question as to the competence or independence of the person who wants to change their will, trust, or estate plan, or who wants to make a large lifetime gift.

    Time may, therefore, be of the essence, and a person who is contemplating making such a change may want to move forward without delay, rather than waiting until they are in a time limited situation, or in a situation where their health has deteriorated or their dependence on others had increased.