An estate plan may face serious problems if it is stale. Problematic issues include a second marriage, with children from earlier marriages, an older or debilitated widow or widower who changes the disposition of their wealth or assets shortly before they die, a dysfunctional family, an heir who acts solely on self-interest and an executor or trusted agent who is dilatory, biased or aggressive.
Wills may leave the disposition of valued personal property to the executor’s discretion. This may cause a fight over that property, which can spread to more important assets in families which do not get along well. Accordingly, a person should identify who receives coveted heirlooms and should not leave this decision until the end of their lives. Funeral arrangements should also be clearly specified to avoid disputes.
Last minute arrangements often involve allegations that there was undue influence, lack of capacity or fraud. Undue influence is the destruction of the testator’s free will alleging that the person was coerced into doing something that was not in accordance with their wishes. Normally, this requires proof that there were suspicious circumstances at the time the will was executed and there was a confidential relationship between the testator and the person who exercised this influence and the beneficiary.
Some of these elements include whether the beneficiary was present at the will’s execution, the beneficiary recommended or arranged an attorney to draft the will, the beneficiary kept the will secret, the testator was isolated from other family members, the beneficiary was a daily caregiver, the testator was taking medication and the testator was suffering from a physical or mental impairment. If undue influence is established, the will may be set aside and an earlier will may be admitted into probate.
There may be other serious legal challenges. Family members may seek the sale or distribution of estate assets, appraisal of personal property, the setting aside of beneficiary forms for insurance policies and retirement accounts, an estate accounting and actions to contest the activities of agents acting under a power of attorney.