A will is referred to as the last will and testament. Every will you write is your last will and testament. If you write a will when your children are infants, that will may not deal with the circumstances of your children 25 or 30 years later. You cannot assume the needs of your children or other loved ones are the same early in their lives as they will be later in their lives. Your assets also may change or vary significantly during the course of your life. You may get married, get divorced, have children, have children who die before you, have grandchildren and be responsible for taking care of parents or other loved ones. All of these issues should be addressed in a will.
If your will is not up to date, you should write a new will. There is a device called a codicil which is an amendment to the will. However, modern drafting of wills strongly suggests against writing codicils. Instead, a new will should be written and the old will should be revoked.
Revoking a Will
How do you revoke a will? A will can be revoked by writing a new will which supercedes the old will. A will can also be revoked by tearing it up and throwing it in the garbage. You can also write revoked across the front of a will, sign your name and date it.
Challenges to a Will
A will can be challenged for a variety of reasons. A will can be challenged based on the fact it was not executed with proper testamentary formalities. There are very specific and detailed requirements necessary to write a will in the State of New York. Certain things must be said, certain things must be done, and the will execution ceremony has very specific requirements. You should never try to write your own will. Always consult with an experienced estates attorney if you seek to draft a will.
Testamentary Capacity
Another reason for challenging a will is the individual did not have the mental capacity to write a will. This challenge basically states that said individual didn’t know what he or she was doing when the will was executed.
Undue Influence
A will can be challenged on the basis someone had taken over the individual who wrote the will’s ability to make independent decisions on their own. This is referred to as undue influence. Undue influence becomes a more significant issue when an individual grows old and is infirm and becomes dependent on another individual who ingratiates themself by pressing them to write a will leaving them all of their assets or a disproportionate amount of the assets.
Fraud or Duress
If an individual is tricked or coerced into writing a will, the will can also be challenged.
Avoiding Will Challenges
Under New York law, a spouse is entitled to a minimum of one-third of your estate or $50,000, whichever is larger. If you write a will leaving your spouse less than one-third, he or she can challenge the will. To avoid will challenges should you want to leave a spouse less than what he or she is entitled to under New York State law, a prenuptial agreement or a waiver of spousal inheritance rights document must be prepared and executed.
If you seek to disinherit a child from receiving assets in your estate, the best way to do this is not to leave the child absolutely nothing. The better technique is to leave the child a minimal amount of the assets in your estate and have a clause in the will indicating if that child challenges the will, they lose the specific amount you left them in the will.
Conclusion
If you have issues or problems, or seek to draft a will, contact an estate planning attorney who can help you meet your goals.
