If your elderly parent has no will, for whatever reason, it can be difficult to make them understand why they need one. Without a will, the estate passes according to the state’s laws of inheritance. This means certain types of property may be treated differently than others, which can result in certain loved ones being left out entirely. To avoid unfair results and unintended consequences, every adult should have a will.To avoid unfair results and unintended consequences, every adult should have a will. But if you push too hard to get your mother or father to make a will, you could be exposing the will to a challenge in court, where it might be ruled invalid.
It’s important to remember that for a will to be valid, it must be entirely voluntary. If a will is the product of coercion, compulsion or undue influence on the signer, the court has the authority to invalidate the will. The law is especially skeptical of efforts to have elders, who may not be of sound mind and body, execute wills at the urging of a caregiver who enjoys exclusive access and stands to benefit from the will. You might have the best of intentions in urging your parent to make a will, to prevent problems following their passing, but you could wind up arousing enough suspicion to provoke a fight challenging the will.
Here are a few tips to help you avoid a will challenge in probate:
- Tell your siblings you want to get the will process going. Transparency is very important. Tell your siblings that you are going to set up a meeting between your parent and an estate planning attorney. If possible, give them enough time to voice their concerns to you and your parent.
- Don’t hire your own lawyer. Ask for a referral to a reputable attorney with whom you have never done business. Make it clear that you are not the client; your parent is.
- Don’t sit in on discussions. It serves no purpose for you to be in the room when your parent speaks to the attorney. If your parent can’t handle the meeting alone, that may be sufficient evidence your parent lacked the mental capacity to make the will, which would be grounds to invalidate it.
- Don’t ask your parent to reveal the will’s contents unless he or she is willing to tell everyone. The less private knowledge you have about the details of the will, the better for its validity.
If your parent is in a nursing home or assisted living facility and you are the primary contact for your family, you occupy the classic position of the person who acts with undue influence. If you want your parent’s will to be upheld in probate court, you need to behave in a way that’s above suspicion.
The best way to achieve that is by helping your parent locate an experienced estate planning attorney that they are comfortable with and then removing yourself from the process as much as possible.
