Saugus Advertiser January 29, 2004

Do You Need To Update Your Will?

One of the more frequent questions I hear is, “Do I need to update my will?”. Many times it is not necessary but occasionally it is wise to do so. Today we’ll take a look at some factors that don’t affect your will, as well as some that would make it necessary to make a new will.

One of the first things that I look at is whether the will is a “self proving will”. A self proving will is one that is notarized and has a statement that the will has been signed and witnessed before the notary and, that the witnesses each declare that the person making the will signed it in their presence, willingly. The importance of this self-proving affidavit comes when trying to get the will admitted to probate. Wills without the self-proving affidavit may be admitted to probate only if all interested parties assent or if at least one of the subscribing witnesses gives testimony at the time of probate. Interested parties are all of the heirs at law and anyone named in the will as receiving anything under the will. Assent is basically a fancy word for signing the petition for probate, meaning that you agree that this is the persons will.

All of the wills that attorneys draft nowadays contain the self- proving affidavit. This allows the will to be filed without testimony and without getting all of the signatures of interested parties. It allows the executor to get along with his or her job and administer the estate.

Wills can also be extremely important to save estate taxes. If you made a will when you first got married and did have much in the way of assets, that was fine then. If you now have accumulated a lot of wealth, you probably need some tax planning done. On January 1, 2003, the Commonwealth of Massachusetts reinstated their Estate Tax and for the tax year 2004 taxable estates in excess of $850,000 will be subject to tax. Tax planning is available for husbands and wives with assets over this amount that incorporates the use of trusts to minimize the taxes on the last to die. Suffice it to say that not doing any planning, with a competent advisor, could cost a family hundreds of thousands of dollars if you have a large estate. These planning techniques are beyond the scope of this article.

Marriage and divorce affect wills. If you have made a will and you either get married or divorced, your will is automatically revoked. We recommend that everyone have an enforceable will to avoid having their property distributed according to rules of intestacy. The rules of intestacy are state rules which determine who gets your property if you do not leave a will. A will is also important for families with minor children because the will is used to name guardians for minor children. You should also remember that making a new will automatically revokes any prior will.

When it comes to fighting, or trying to invalidate a will, we are often concerned with what we call testamentary capacity and undue influence. Testamentary capacity is the ability to understand what they are signing. The case of Goddard v. Dupree, decided in 1943, is the leading case. In that case it was decided that testamentary capacity requires that you understand the nature of the instrument that you are signing, have a general idea of what your assets are, and should be aware of the natural objects of their bounty. Testamentary capacity is ordinarily presumed, but may be rebutted. Evidence that a decedent attempted to disinherit a niece he mistakenly believed was poisoning him warranted a finding that he lacked capacity. However, execution during a “moment of lucidity” can be sufficient to validate a will.

Undue influence deals with pressure by a third party on someone to make a will that favors that third party. A will is always presumed to be valid. Any heir at law or a beneficiary of a prior will has the ability to challenge the will. In order to prove undue influence, three things must be proved: (1) the person making the will must have been susceptible to being influenced; (2) someone deceived him or exerted influence over him, and (3) the person made changes to his will because of that influence.

You can cut a child out of your will. Disinheritance is when a parent’s will says that they are not leaving anything to a particular child or children. The intention of not leaving anything to a child or the issue of a predeceased child should be stated to avoid the claim that they were unintentionally omitted. Occasionally, a child does not get what he or she thinks is a fair portion of the decedent’s estate or they are not mentioned at all in their parent’s will. When this happens, as an heir at law, they have the right to object to the will. As long as you had testamentary capacity and there was no undue influence, the will challenge should not be successful.

In some large estates we sometimes use an “In Terrorem” clause. This says that if the child objects to the will, they will lose whatever they were going to receive under the will. In order for this to be effective, we generally advise that the parent leave the child a substantial amount of money. The child then has to decide is he/she better off accepting the amount in the will or challenging the will and risk losing everything. Without the risk of losing a substantial amount of money, the child has nothing to lose by challenging the will.

This article gives general information and not specific advice on individual matters. Persons wanting individualized advice on matters discussed should contact an advisor experienced in those matters. To the extent this article provides information on legal matters, it is based on law in effect in Massachusetts on the date of posting (laws in effect in other states are often quite different).

Ronald H. Surabian is a CPA and attorney who works at the Elder Law Center in Saugus, Ma. He also holds a masters in accounting and a masters in tax law. He currently serves on the board of directors of the Massachusetts Chapter of the National Academy of Elder Law Attorneys.

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