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Posted on Thursday, February 12th, 2015 by Adam Reid

Not all family and friends are perfect. And in some cases, they can be downright malevolent. Ensuring family members and loved ones are not unfairly left out of a decedent’s Will is a common concern.

Modern medicine has vastly increased the average lifespan. Sadly, science has not solved every problem, and one in three seniors die with Alzheimer’s or dementia. These diseases affect a person’s judgment, memory and cognitive functions. Often reaching the point where a patient may completely lose capacity to develop or revise their estate plan. In some cases, loved ones take advantage of this weakened intellect for personal gain.

In Pennsylvania, two safeguards protect the testator from being taken advantage of in this manner. First, in order to write or revise a will, the testator must have capacity to do so. Among other requirements, capacity means the testator must understand their actions including, the nature of their property, their family and personal relationships and the effect of the will on both the property and persons. After a certain point, individuals with Alzheimer’s may lose complete capacity to revise or create an estate plan. In other cases, knowledge of a partially weakened mental state causes a beneficiary to exploit this condition for their own gain.

The second safeguard requires that Wills are drafted free of undue influence. Undue influence is a legal claim against a beneficiary who had a special relationship with the testator. Greatly simplified, claiming the special relationship was used to manipulate the testator’s estate plan for personal gain. In order to establish a claim of undue influence in Pennsylvania, three factors must be established:

  • Confidential relationship between decedent and beneficiary
  • Decedent had weakened intellect
  • Substantial benefit to the beneficiary exerting undue influence

Cases involving undue influence are sensitive for many reasons. Both the interpersonal aspect and factual assertions can be uncomfortable. To ease the tension, one potentially can simply establish the confidential relationship factor. At that point, the burden of proof shifts to the person holding the confidential relationship to rebut the claim of undue influence. An experienced probate attorney can provide guidance and a neutral interface in addressing contentious undue influence and lack of capacity challenges.

If you need assistance with probate or with developing your Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

Wills, Trusts and Estates, It’s All We Do!

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