More and more often I am working with estates and aging parents (or their children) in handling changes in estate plans. As parents age their assets have changed such that they want a new distribution sequence. Or, gaps arise which were not previously foreseen, including a previously named beneficiary is no long wanted or a new beneficiary wants to be named in addition to prior named beneficiaries.
The first question that needs to be answered is whether the person making the changes has capacity. Supposing that answer is Yes, the next question is whether the decision being made is their own or the product of undue influence by another. The lawyer helping you with these changes must know the legal test and must assess it against your situation. The test is: (1) the influencing party’s opportunity to exert influence over the testator, (2) the influencing party’s active participation in the will preparation, (3) a confidential relationship between the influencing party and the testator, (4) disinheritance of parties who “probably would have [been] remembered,” (5) singularity of the provisions of the will, and (6) the exercise of influence or persuasion to induce the testator to make the will. A district court determines the existence of undue influence by considering “all the surrounding circumstances.”
Your lawyer will be a witness at trial. That lawyer must take proper notes and address with you the factors. Whether you're in Hugo or Duluth or Lino Lakes or in between, I am ready to help safeguard you through changes.
