Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part III

Fraud involves a situation where there has been a material misstatement of facts that the individual preparing a document such as a will, a trust or opening a joint bank account believed to be true. In this situation even the acts of competent individuals can be tricked into transferring assets or changing the individuals named on bank accounts or other estate planning documents. Here again, the persons challenging the transaction stating the action was impacted on by fraud, have the burden of proof.

Convenience Accounts

Sometimes when seniors get old, they have the inability to handle their finances. In these situations they will put a loved one, friend or child on the bank account solely for the purpose of helping them pay their bills. In these convenience accounts situations, the person who is put on the account was not intended to be a beneficiary should the maker of the account die. In situations where the person who was put on the bank account was not intended to inherit but was only there for convenience purposes of assisting the individual who died, the transaction can be shown to be simply that, a convenience account and not a situation where the other individual on the account should inherit. It is important in these situations that it be proved the intent of the individual who added the other person to the bank account was solely for convenience purposes.

Lack of Testamentary Formalities in Creating a Will or a Trust

In the State of New York there are very specific requirements to write a will. A will must be executed in front of two witnesses. The person making the will must publish to the witnesses that this is his or her will. The will must be signed at the end by the individual making the will and the witnesses must witness the signature of the person making the will and the signatures of the other witness. The witnesses must stay in the room the entire time for the duration of the will execution ceremony. The individual making the will must know what the actual objects of his or her bounty are and numerous other requirements. Violation of any of these requirements to make a will in the State of New York is a basis to set the will aside.

Probate Litigation, Estate Litigation and Family Feuds

Most estate contests involve litigation between family members. Unfortunately, a loved one dies and then the fight over his or her money or other assets ensues. Sometimes, these estate issues can be resolved amicably through negotiations between counsel for the various parties. However, if these issues cannot be amicably resolved, it is extremely important to quickly take the appropriate legal action in the Surrogate’s Court in New York to protect the interests of those individuals being deprived of their inheritance. It is extremely important whether you are an administrator, executor, or beneficiary of a will, trust, bank account, other investment vehicle or real estate, that you know your rights. The best way to be successful in these endeavors, is to hire an experienced, qualified estates lawyer to explain your rights to you and provide remedies to you when necessary.

Conclusion

Shakespeare said “money is the root of all evil”. Unfortunately when a loved one, friend, or family member dies, greed can sometimes become the moving factor which tears families and loved ones apart. Greed motivates individuals to take improper action sometimes to obtain a greater portion, or a portion of the decedent’s assets they were not entitled to. Having the best legal representation is clearly the best way to deal with these issues.estate and probate litigation attorney

Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part II

probate litigation on Long IslandUndue Influence

Undue influence occurs in situations involving emotional or physical coercion. Threats, flattery and excessive action to persuade an individual to the point where that person no longer has a freedom or will on their own to make decisions as to who should receive their assets, are all examples of undue influence. When the beneficiary, either through a will or of a joint account, is an individual who had power of attorney, was the actual attorney for the individual, or was in a position of trust or confidence such as a caregiver, a presumption of undue influence can arise with regard to transactions which enrich these individuals.

Incompetence

The basic test for incompetence was whether at the time the individual wrote the will or changed the bank account, he or she understood the nature of the document or transaction which was involved and who the actual beneficiary would be. As individuals grow older, situations involving dementia and Alzheimer’s disease are more common. Sometimes an individual’s memory fails due to age, Alzheimer’s disease or dementia. These individuals can have days where they know what they are doing and days when they don’t. In these cases, it is necessary to obtain the medical records of the individuals who have made the will or transferred the joint bank accounts and sometimes hire expert witnesses to testify in court proceedings with regard to the level of competence the individual had at the time the will provisions were made or the bank accounts were transferred. In addition to medical witnesses, friends, family members and others who interacted with the senior can testify as to their experiences concerning the mental competence of this individual. The law in New York presumes everyone is competent to make a will, a trust, or to put another individual on their bank accounts or other investment accounts. The individuals challenging the transaction have the burden of proof to convince the court to set the transaction aside due to the incompetence of the individual undertaking the transaction.estate litigation attorney

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