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  • Writer's picturePaul B. Plant
    • Jul 6, 2016
    • 3 min read

Do You Have a Difficult Family?

Updated: Jun 30, 2023

A businessman with a $2.5 billion estate passed away in 1976. He was single and many individuals, mostly unrelated to him, filed more than 40 wills with the probate court. Twenty-two cousins fought with all of the other individuals claiming a share of the estate. In the end, the wills were all ruled invalid and the 22 cousins plus the federal government divided up the estate.. This may occur because one of your family members or potential heirs might believe that he or she can receive a larger portion of the estate.


How Will a Difficult Person Attack Your Plan? There are several ways to challenge your will. He or she will claim that you have a lack of capacity, that there were unqualified or improper witnesses, or that there has been undue influence that invalidates the will.


What is Capacity? Capacity is a legal term that means you are qualified to sign a will. Your capacity is defined as (i) your ability to understand that your will transfers your estate, (ii) that you know the general type and nature of your property, and (iii) you can identify the family members who are your potential heirs.


What Questions May the Attorney Ask? Your attorney will be very interested in making certain that the will is properly signed and qualified to transfer your property. He or she may ask general questions to enable you to show that you’re qualified to sign the will. The questions may include, “Why are you here?” and “What do you own?” and “Who are the members of your family?” The attorney and the witnesses will then be able to testify about your capacity if a difficult person claims that you were not capable of signing a proper will. The people you describe as potential heirs will typically be your spouse, children, brothers, sisters, grandchildren, other relatives and special friends. If you are specifically including or excluding someone, you may wish to mention that fact


What is Undue Influence? The action of a child or caregiver in causing us to sign a will that reflects his or her intent rather than our intent is called “undue influence.” Your child or caregiver may encourage you to sign a new will that would disinherit other children or other beneficiaries and give the estate to him or her.


What are the Flags to Watch For?  There are three specific flags or conditions that you should understand. First, if you have physical and mental weakness, you may be more vulnerable. Second, be cautious if the influencer approaches you and offers to obtain the document or pay the attorney. Third, it is a red flag if the influencer is going to receive a larger than normal benefit under the new will.


Is it Acceptable to Sign Your Will if You are in the Hospital? It is very common to sign a will or trust in the hospital. However, there are some cautions or steps that you should take. First, when you sign the will or trust, the attorney, witnesses and medical staff may be in the room, but the beneficiaries should not be in your presence. The advisors and medical staff in the room are there for your protection and welfare and are objective because they are not receiving a bequest or inheritance. Second, it is important for you to explain to the attorney, the witnesses and any medical staff present that you understand the will.


Does a No-Contest Clause Work? In many states, it is permitted for you to write a no-contest clause into your will. For example, if you have four children who each receive one-fourth of the estate, you might write a provision into the will that says if one of them contests the will, he or she will lose that one-fourth share. No-contest clauses have often been upheld.  –Published by The United Methodist Foundation of the Memphis and Tennessee Conferences of The United Methodist Church.


 

Paul B. Plant, Esq., Harwell & Plant

225 Mahr Ave., Lawrenceburg, TN, 38464

Open: Monday – Thursday 9AM – 5PM | Friday 9AM – 3PM

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