People want the gifts stated in their will or trust respected. Protecting such gifts against future attack entails foreseeing subsequent claims by disappointed parties alleging undue influence, incapacity, mistake or fraud. Litigation over the validity of such gifts can cause great expense and personal aggravation to the surviving loved ones. Preventative actions should be taken by the testator and his or her attorney prior to the testator’s death, as discussed below.

Undue influence means that the testator did not make the gift out of his or her own free will, but yielded to the undue pressure of another. To protect against an undue influence claim, the client should always meet individually (alone) with his or her own attorney, outside the presence of his or her own beneficiary. The attorney and client should fully discuss the client’s reasons for any disproportionate gifts. The client may write a handwritten letter stating his or her own wishes and any relevant circumstances. For example, if the client has previously made large gifts to another child during life, then the letter could include that fact. If prudent or necessary, a second attorney may meet with the client and review the documents in order to issue a certificate of independent review stating that the reviewing attorney has determined that it is not the product of undue influence.

Incapacity means that the testator lacked the legally required attention (i.e., presence of mind), understanding (i.e., grasp of the issues) and awareness (i.e., insight into the choices and their consequences) to execute his or her will or trust at the time of its signing. To protect against a claim of incapacity, the attorney should preserve written notes during the attorney client meeting that show that the client had mental capacity as illustrated by the client’s thoughtful consideration of all relevant particulars concerning the client’s family, assets and relevant circumstances. In addition, the attorney may request a physician’s evaluation to hopefully confirm the client’s mental capacity before proceeding further.

Importantly, the witnesses to the signing of the testator’s will should themselves be mentally competent and trustworthy individuals who know the testator personally. At the signing, the testator should affirm any controversial gifts. Lastly, if necessary, the gifts can be confirmed by a court order, obtained by means of a conservator who files a court petition for “substituted judgment”.

Allegations as to a mistake could entail a claim that a drafting error occurred that went unnoticed and that the testator accordingly did not truly intend to make a particular gift. To forestall such an attack the testator might sign a document (often prepared by the attorney) that states in layman’s terms the specific gifs to the individual beneficiaries (and alternative beneficiaries). The client can also share his wishes with his family while he or she is still alive to get everything out in the open. This can be very uncomfortable and may or may not be a recommended course of action.

An allegation as to fraud could entail a claim that the relevant document asserted to be the will or trust with all amendments, is not genuine. Accordingly, have the will or trust prepared by an attorney, have each page initialed by the signor, and have all relevant documents preserved together inside a single binder where its location is known to those persons entrusted with its implementation. Also, have your attorney keep a copy.
In sum, an ounce of prevention is worth a pound of cure. Protecting the gifts you make to your surviving loved ones from attack is integral to your peace of mind and your legacy – and certainly worth the extra effort.



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