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Delaying Creation of Your Will Increases the Likelihood that It Will Be Challenged

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Few people relish the thought of sitting down with an attorney and talking through what will happen to their dearest possessions and savings when they die. It might feel morbid, but if you wish to make life easier for your loved ones when you pass on, creating a will is of critical importance—even if you don’t believe you’ve reached an age when you’ll need a will any time soon. While there is always the chance that you could be injured in an accident and go before your time, there is also the possibility that delaying creation of your estate plan until your advanced years could result in a will contest based on a claim of incompetence or undue influence. Read on to learn more about these challenges to a will’s validity, and speak with a New York estate planning attorney with any questions.

Wills can be challenged for many reasons. When someone wishes to challenge a will on the basis that the deceased person wasn’t fully competent or of sound mind when writing the will, they are likely to claim that there was undue influence or a lack of mental competence.

  • To prove a claim of undue influence, the challenger must show that the testator (the person writing the will) included terms in their will in response to coercion or that went against their true wishes for how their estate should be distributed. These claims often arise when a testator was very elderly or seriously ill at the time that they wrote or altered their will. The challenger can claim that, by virtue of being in a weakened state, they were susceptible to coercion or fraud from the beneficiary and were unable to ensure that their true intentions were reflected in the will.
  • In order for a will to be valid, the testator must have had testamentary capacity at the time the will was written. This requires that the testator understood what property they owned, who were their family members and loved ones, and the nature of the gifts of property they made in their will. If a testator exhibited signs of dementia or senility, the challenger will argue that the testator could not have fully understood what he or she had included in the will.

Even when challenges to a will aren’t successful, they can still be time-consuming and expensive battles for your heirs. You can help them avoid these contests by creating an estate plan when you’re young and using regular updates to ensure it remains accurate to your wishes.

If you have not yet created a plan that provides for your family and loved ones when you go, contact the seasoned and detail-oriented Hudson Valley estate planning attorneys at Rusk, Wadlin, Heppner & Martuscello, LLP for a consultation, in Marlboro at 845-236-4411, or in Kingston at 845-331-4100.

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Kingston Office

255 Fair Street, P.O. Box 3356
Kingston, New York 12402

Phone: 845-331-4100
Fax: 845-331-6930

Marlboro Office

1390 Route 9W, P.O. Box 727
Marlboro, NY 12542

Phone: 845-236-4411
Fax: 845-236-3190

Rusk, Wadlin, Heppner & Martuscello, LLP, is located in Kingston, NY and Marlboro, NY and serves clients in and around Ulster County as well as parts of Orange, Dutchess, Columbia and Greene Counties as well as many surrounding areas.

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