Protecting Your Testamentary Wishes As An Older Adult

Just because you have retired and grown older does not mean you have lost the ability to make decisions about your life or to decide for yourself who will inherit your assets when you die. Perhaps you do not have children or grandchildren and want to leave your assets to a friend or charity. Perhaps you feel your children and grandchildren are ungrateful and undeserving. Undue influence and financial exploitation of the elderly is real and can be devastating to the victims and their families. However, it has become all too common today for disappointed heirs to bring a lawsuit for undue influence and interference with expectation of inheritance anytime an older adult changes his or her will or estate plan to disinherit a family member who expects to benefit from the older adult’s estate. This is true even where the older adult retains capacity, employs a reputable estate planning lawyer to prepare the new estate plan, and demonstrates the ability to make reasonable and logical decisions. At the core of these lawsuits is an assumption that when a person reaches a certain age (80 or older in most cases), despite clarity of mind and the ability to exercise independent judgment, any change to an estate plan is inherently suspect as the product of undue influence. Once a lawsuit is brought, the case generally results in settlement because such lawsuits are expensive and difficult to defend.  Most cases are brought in the context of a will contest after the older adult, who should be the principal witness, is dead.


If you are an older adult, or you are helping an older adult who wants to update and or modify an existing will or estate plan to disinherit children or close family members, you need to plan carefully. You will want to think seriously about the changes you are making and the reasons for those changes. You may want to discuss the changes with trusted family members and friends who will not be inheriting anything from you and ask them to record your reasons for making changes. You may want to document your reasons for making changes in an open letter to your family. Make sure any professionals you work with, including your lawyer, understand your reasons for changing your will or estate plan so that your beneficiaries are in a position to protect your testamentary wishes from challenge after your death.