When someone dies and leaves you property in their will, by beneficiary designation, or through the intestate beneficiary laws of their state, it is possible, and sometimes wise, to reject the would-be inheritance by “disclaiming” your legal interest to it. However, there are certain procedural rules and mechanics necessary to effectively complete the disclaimer.

Someone may choose to disclaim their interest in an inheritance for a variety of reasons. They may simply not need it or would prefer another person to receive it. Disclaiming in these circumstances may be preferable to accepting the asset, then gifting it to the recipient. Disclaiming may also be warranted if receipt of the asset could lead to it being seized by creditors, impacting the person’s tax planning, or affecting their eligibility for certain government programs. For very wealthy individuals, receipt of additional assets through inheritance may prove problematic for purpose of the estate tax and later cause taxation at the recipient’s death that could have been avoided by a timely disclaimer. In fact, some types of trusts, commonly known as Disclaimer Trusts, anticipate the disclaimer process being utilized for estate tax purposes and create mechanisms to take advantage of the disclaimer process to minimize the repeated taxation of assets as they move through a family tree.

Wisconsin Statute § 854.13 governs the rules for disclaiming assets in Wisconsin. To be a valid disclaimer under the statute, the disclaimer must meet certain technical requirements. It must contain a description of the asset to be disclaimed, declare the intent to disclaim, the extent to which the disclaimer applies, and must be signed by the disclaimant. The disclaimer must be delivered within nine months after the effective date of the transfer, although extensions are sometimes possible “for cause” with court permission. The disclaimer must be delivered to the party identified under WI. Statute §854.13(5), which is typically the personal representative of an estate or the trustee of a trust holding the relevant asset. The delivered disclaimer must then be filed with the probate court with jurisdiction over the estate and, for real estate, recorded with the Register of Deeds of the county the real estate is located in. When the individual disclaiming the interest is a minor or incapacitated, the statute includes special rules which apply to ensure their guardian or agent acting under power of attorney is acting in the best interest of the disclaimant.

Importantly, the disclaimer must also be made before the individual accepts the asset or any benefit from the disclaimed asset. For example, if the contents of an investment account are liquidated and transferred to the beneficiary’s account, those funds have been accepted and the person can no longer disclaim them. Similarly, if someone is to inherit a vehicle and drives in it, they have accepted the benefit of the asset and can no longer disclaim it. Accidental acceptance of an asset can sometimes be disastrous, so if you are considering disclaiming your interest, make sure to be mindful of the management and use of the asset so you do not accidentally bar yourself from disclaiming it by accepting the asset or its benefit. The possibility of accidental acceptance is also a limitation of the Disclaimer Trust described previously, and some estate planning attorneys choose to avoid it in favor of other methods – like formula funded trusts – to avoid this risk.

To be valid for federal tax purposes, the IRS also imposes requirements for a “Qualified Disclaimer” in Section 2518 of the Internal Revenue Code, which are similar, but distinct from the Wisconsin rules.

A properly executed disclaimer is irrevocable and causes the asset to be treated as if it never vested in or transferred to the disclaimant. Assuming a divestment is effectively made, the asset passes under the rules set forth in WI. Statute §854.13(7) through (10). The general effect of the disclaimer is that the asset would pass as if the disclaimant has died before the decedent. For example, if a person dies without a will and the laws of intestacy direct that the asset would pass to the decedent’s surviving parent, who then disclaims, the asset passes as if the parent has predeceased and it passes to any living siblings of the decedent. As another example, if an individual dies with a will providing all assets would pass to their surviving spouse, and to their children if the spouse predeceases them, a disclaimer by the surviving spouse would cause the assets to pass to the children.

Despite the “general rule” outlined above, the statutes contain many exceptions and special rules for certain scenarios. Because a disclaimer is irrevocable once made, it is important to fully understand where the asset will pass before completing the disclaimer. If you have any questions about disclaiming assets from an estate, please do not hesitate to reach out to one of our attorneys.

 

The past decade has seen a steady increase of businesses being run from individual’s homes and the changes brought about by the Covid-19 pandemic have only increased this trend. Whether a “side-hustle” or primary source of income, business owners should carefully consider the legal and tax rules at play before opening their homes for business.

In addition to aspects relevant to all businesses, those operating a business from home must consider: (1) relevant property restrictions, (2) home business tax deductions, and (3) special liability and insurance considerations.

Property Restrictions

Property restrictions should be among the earliest factors analyzed, ideally before expenses are invested into the venture, as municipal zoning or private land restrictions may flatly prohibit the at-home business altogether.

Counties and municipalities enforce zoning restrictions which classify large swaths of land under different rules for use. These zoning programs are intended to organize land use in a planned and practical manner. For example, zoning codes may protect the interests of quiet suburbs by prohibiting the construction of multi-unit apartments or noisy factories in the area. While every local government unit has their own approach to zoning, generally, larger communities have more specific, restrictive, and regularly enforced zoning programs than smaller ones. Depending on your local rules, your home may be in an area which prohibits commercial activity. Whether your planned business falls under the relevant rules can only be determined by checking to see how the local codes define and restrict commercial use. Faced with an adverse zoning designation, you may be able to apply for a variance – a special exception to the zoning rule applied for and reviewed on a case-by-case basis.

Your use of the home may also be subject to private land-use restrictions. Most obviously if you rent your home, your lease may restrict your ability to operate a business from the property. If you have a good relationship with your landlord, they may be willing to amend the lease, as the inclusion of commercial use restrictions in the lease is often the result of a landlord using a form document, not their particular objection to you using the property that way.

Homeowners are not necessarily free from private party restrictions, as many properties are subject to restrictive covenants. These documents are essentially private contracts that were put into place by former owners and whose terms automatically pass on to new owners of the property. Some neighborhoods form Homeowner Associations to enforce these covenants. Others do not, but still allow any property owner, also subject to the covenants, to sue for their enforcement. Make sure to read your restrictive covenants carefully before opening a business. In addition to restrictions on business operations, check the rules for signage restrictions and parking and guest vehicle restrictions if clients will be visiting your home office. If the covenants restrict the type of activity you plan to perform, check to see what process is available for amending them.

Taxes

Assuming no land use restrictions prevent you from operating the business from your home, you will want to ensure you are taking maximum advantage of any available tax saving options. When considered during the onset of a new business, these tax rules may influence how you choose to organize running the business from your home.

Businesses are entitled under the tax code to deduct necessary and ordinary business expenses from their taxes. For example, if a business purchases a couch for their waiting room and hires a cleaning service to maintain it, this will typically be deductible as a business expense. If an individual purchases that same couch for personal use and hires the same cleaning crew to clean their home, this expense is not entitled to deduction. Because of a home business’s inherent melding of business and personal use expenses, the rules for home office deductions are somewhat complex. This article will review in broad strokes how these rules operate, but a qualified tax accountant or attorney can help guide you through the nuance of your particular situation. While no substitute to qualified professional advice, Reviewing IRS Publication 587 may also be a good start to understanding the basic rules at play.

The first step towards taking advantage of these tax benefits is to qualify for the deduction. Generally to qualify, a part of your home must be used exclusively and regularly for business purposes. As an example, using your living room couch as a place to sit when you check email is unlikely to qualify. Special variations of the general rules exist for unattached separate structures, space used for storage of inventory, daycare facilities or property used for rental purposes. Like most areas of law, the qualification tests are deceptively simple, and careful attention must be paid to how the rules define each word in a given test.

Assuming you qualify to take the deduction, the next step is to calculate the amount of the deduction. Here, you have a choice for each year you claim the deduction, either use a calculation for actual expenses or elect to use the simplified method offered by the IRS. Whatever your method of accounting for the deduction, make sure to keep adequate records to support your claims if you are challenged by the IRS. Your records should be maintained as long as the facts they support may still be challenged. For tax purposes, this usually is three years following the date that year’s tax return was filed.

Liability and Insurance

A lawsuit can wipe out years worth of income if proper precautions are not taken by a business owner and running a business from the home introduces unique risks. These risks are compounded if you have business clients or employees of the business meet or work at your home.

Like all business owners, a home business operator should consider forming a Limited Liability Company (LLC), Corporation or other form of limited liability business entity to operate their business out of to shield their personal assets from any suits made against their business.

To the extent possible, anyone entering your home for business purposes should remain in the portion of the property used for the business, as an injury occurring in another part of the home may blur lines between a business contact of your LLC and a house guest to whom you are personally liable for. It may be difficult to argue a personal injury lawsuit should be limited to your LLC when the injury was a result of tripping over a toy left in the living room by your child.

Even with proper limited liability entity planning, the assets of the business inside the entity are still subject to the suit and may be a devasting loss if liquidated to pay a settlement or judgement. Thus, insurance on the business is the first line of defense to maintain your assets, with the limited liability entity planning serving as an emergency flood wall against a disastrous lawsuit wiping out your entire estate. Most homeowner’s carry homeowner’s insurance, but these policies may not cover damages flowing from business use of the property. You should consult with your insurance provider to make sure you are appropriately covered and whether you need a supplemental business insurance policy. In addition to liability coverage, if your business owns expensive equipment or large amounts of inventory stored in your home, consider loss coverage to fund the replacement of those assets in the event of a flood, theft, or fire. Like with liability coverage, homeowner’s coverage for your personal assets will be unlikely to cover the garage full of business inventory that is damaged, destroyed or stolen without additional coverage options. If you have questions, do not hesitate to reach out to one of our business or tax law attorneys.

 

Indemnification provisions provide an important tool to parties seeking to allocate the risk of third-party damages and liabilities when contracting. When reviewing a contract, most people understandably first consider things like deadlines, pricing information, and the description of the assets to be transferred or the services to be performed. While these things are of course important, a well drafted contract can do much more. Frequently overlooked as “boiler plate” language, the exact structure and wording of an indemnification clause can become vitally important to protect your interests and limit the impact of creditor claims for actions you had little control over or means to prevent. These clauses should be fully understood and carefully considered before signing an agreement. Some contracts may not use the word “indemnification,” rather phrases like “hold harmless” or agreements to “defend” the other party and are a red flag that something like an indemnification clause may be at play. For such reasons you should always look beyond the heading of a section when interpreting the text at issue.

The assignment of responsibilities for liabilities is often a large part of agreements for commercial transactions. While the parties to a contract have broad discretion to transfer property, obligations and liability between themselves, they are limited in their ability to dictate that third parties – who have not joined into the contract – respect the terms of an agreement they had no say in. This conforms to the broader legal principle that “no one gives what they do not have.” For the same reason you cannot contract to sell something that belongs to another without their consent, you cannot contract to limit the rights of others to make claims they are otherwise entitled to make. Because the allocation of liability for certain causes of action is such an important part of many contractual matters, parties sometimes instead use indemnification provisions to essentially refund, or “indemnify,” the other party if they suffer damages resulting from certain types of issues.

To illustrate this principle, consider the following situation. A business owner rents a storefront from a landlord and agrees in the lease that they can only sue the landlord under certain circumstances. The business owner accepts certain risks or faults with the property they are renting.  For this example, assume the landlord discloses the radiator is not up to code and could cause a burn, so the tenant will take on the responsibility to get it fixed and agrees not to sue the landlord if they get burned by it before it is fixed. On its face, this arrangement seems a valid contractual exchange – the landlord gives up the right to use the property for a set time in exchange for: (1) rent and (2) the tenant’s agreement to limit suit against them from injuries over certain disclosed problems and (3) the agreement by tenant to fix the radiator.

In contrast, the landlord cannot effectively include a provision saying that “none of your customers can sue me if they are injured on the property, because you are responsible for keeping it in good and safe condition.” Despite the landlord shifting responsibility to keep the property in good condition to the tenant, they cannot prohibit third parties from making claims against the landlord if they are injured on the property. If the business owner fails to have the radiator replaced and a customer burns themselves while shopping, the burned customer would be fully within their rights to sue the landlord, despite the landlord’s arrangement with the tenant to fix the issue.

To better protect themselves, the landlord should have included an indemnification provision. Since the parties cannot limit who third parties claim damages from, they instead say “If I am forced to pay a certain type of claim, you agree to pay me back.” Here, the lease could apply indemnification to liabilities arising from the tenant’s negligent maintenance or actions with respect to the rented space, perhaps with specific reference to damages from the radiator if they fail to replace it. If the injured customer sues the landlord, the landlord would pay the claim and then seek to enforce the indemnification provision to recover the costs from their tenant who had agreed to indemnify them under these circumstances.

Far from being the “standard provision” they are often dismissed for, indemnification provisions can vary widely in scope, application and duration. Depending on the bargaining power of the parties, all such points may be negotiated.

The scope of an indemnity governs what circumstances are covered under it. A common scope provision might provide damages fall under the indemnity if they are a result of a breach of the agreement, inaccuracy of any representations or warranties made by the indemnifying party. Before agreeing to indemnify another party, consider what type of actions would fall under the described scope, whether any ambiguities exist regarding the scope of coverage and whether you have any control over preventing or reducing the risk of those types of claims. Ideally, you should not be agreeing to indemnify a party for liability resulting from the actions, errors, or omissions of their own or of a third party you have no control over. Wisconsin law permits broad indemnification clauses, but Wisconsin courts tend to strictly construe them, meaning they will not generally stretch the interpretation of the clause to bring an ambiguous situation under the indemnity. Wisconsin also has special rules for the scope of indemnification in construction contracts.

The application of an indemnity relates to how an indemnity will mechanically be triggered, calculated, and resolved. This includes important provisions on the required notices and timelines associated with various aspects of the indemnification procedure. A party seeking to rely on the clause should carefully comply with these technical requirements as the party obligated to pay under it will likely be looking for ways to get out of it if it is triggered. The provision may also place limits on the amounts required to be paid under the clause, or require certain steps are taken to ensure damages are mitigated or funds are available to comply with the indemnification requirements. The parties may require each other to carry insurance policies designed to cover these costs during the term of the indemnity to ensure it is effective. This is important because an indemnification right against a party with no collectible assets does not offer much protection. In the example used earlier of the landlord and tenant, the landlord’s indemnity will not be useful if the tenant has no assets from which to recover or if all of the assets are separated from the limited liability entity which granted the indemnity and thus very difficult to reach.

The duration of the indemnity governs how long the agreement to provide indemnity lasts. Contracts for purchase and sale transactions often have the bulk of the agreement terms end following the transfer of goods and payment, but indemnification provisions are often among the terms separated out and assigned a longer period of “survival.” These terms usually are tied to the statute of limitations for the claims they are being applied against but may still vary.

If you have questions on how an indemnification clause in a contract you are considering will operate, you should speak to a business law attorney to help you review, understand and potentially negotiate alterations to the agreement.

 

When an individual dies, their assets are distributed to their beneficiaries through a variety of procedures depending on their estate planning choices. The most common beneficiaries of an estate are either a surviving spouse or the adult children of older parents. However, occasionally a minor becomes the beneficiary of some or all of the assets from a deceased individual. This typically happens if a grandparent dies and leaves assets to a minor grandchild or if the parents of young children both die before their children become adults. Because a minor lacks the legal authority to manage their own assets, they cannot take direct control of the inheritance. Instead, an adult or other third-party needs to take control of the assets until they are old enough to take over. There are three main ways a minor can inherit property: (1) directly, (2) by trust, or (3) under either a Uniform Transfers to Minors Act (UTMA) account or a Uniform Gift to Minors Act (UGMA) account. Each option creates different outcomes for how the assets are managed and when the beneficiary ultimately takes control.

Before exploring what happens to assets left to a minor, it makes sense to first define “minor.” Legally, a minor is an individual who, by reason of their age, is considered legally incapacitated and thus prevented from making certain decisions that someone with full legal capacity would be entitled to make for themselves. While sometimes restrictive, the laws are intended to be for the minor’s own good – to protect them from their own bad decisions or from third parties seeking to take advantage of their inexperience. For the same reason we would not allow a child to accrue credit card debt in their name or get a tattoo, we do not allow children to take full control over large sums of inherited money. Depending on the state, the “age of majority,” or the age where an individual ceases to be considered a minor, is between 18 and 21. Some states grant certain rights at 18 while reserving others until later ages. In Wisconsin, the age of majority is 18 for almost all purposes, but age 21 for purposes of UTMA and UGMA accounts.

Anyone 18 years of age or older who is a direct recipient of inherited property will receive it outright and have full control to spend, save, or invest it as they wish. Examples of direct bequests are being named in a will or beneficiary designation, or by the default inheritance rules created by Wisconsin law if the deceased died without a will. If the beneficiary is instead under 18 years old, they will not be entitled to take control over that property until they reach the age of majority. Instead, a guardian is appointed by a court to control that property on their behalf. This person is often the same as the guardian named to look after the minor, but the legal roles are distinct. The “guardian of the estate/property” looks after the money the minor is entitled to, and the “guardian of the person” is empowered to make the decisions relating more directly to the minor’s life, such as educational and healthcare choices. If the deceased had a will and the recipient is their minor child, they hopefully named the individual(s) they wanted to serve in these roles. If not, the court will appoint someone in its discretion. If the minor beneficiary is living with their parents, the parents will almost always be named as guardian unless the court has a good reason not to. If the parents are divorced, typically the parent with primary custody will be given the guardianship. The guardian of the estate has control of the money and can access it to use for the minor’s care until they turn 18. Once the beneficiary ceases to be a minor, they gain full control over the remaining funds – if any are left.

Certain reporting requirements and oversight procedures are in place, but this role is still rife with the opportunity for abuse. While some cases of guardians misusing the minor’s funds are clear, things are often more nuanced – especially if the guardian of the estate and the person are the same. It is important that the guardian appointed be an honest and competent individual who will carefully guard the minor’s assets against neglect, poor investment choices or abuse (from themselves or third-parties). For their own protection, guardians should carefully document their management of the money as lawsuits for mismanagement or misuse are not uncommon when a beneficiary turns 18 and discovers their inheritance has already been spent. In some cases, it may be beneficial to arrange for the guardian of the estate and of the person to be separate people. While this can complicate things and can lead to conflict between the two guardians, the extra level of oversight and separation often results in a more conservative use of the funds, making them more likely to be retained for the minor once they turn 18.

Many consider 18 too young to be given free reign over large amounts of assets. Even middle-class people can pass on substantial sums after life insurance policies are paid out and their material assets, like their home, are sold. Receiving several hundred thousand dollars, let alone millions, can provide benefits that last a lifetime if managed properly. Unfortunately, most inheritances are completely spent within a few years with minimal lasting benefit. Developmental and behavioral scientists largely agree that decision making abilities are not fully matured until at least age 25, a full seven years later than when a minor recipient of a direct bequest will receive and be able to spend an inheritance.

The solution to this problem lies in not making a “direct” bequest. Instead, a trust, created for the benefit of the individual, is named as the beneficiary. Trusts are extremely flexible tools that can be used to meet a variety of estate planning objectives, but among the most common use for them is to delay the time when a beneficiary will receive control over inherited assets. In short, a trust is a legal arrangement, made either during life or as part of a will, which creates a separate legal entity, the trust, to hold assets. The person in charge of managing the trust is the “trustee,” and the trustee manages the assets on behalf of the “beneficiary.”

Because trusts are so flexible, trying to answer: “What happens if a minor inherits money under trust?” can only really be answered with “Whatever the trust says happens.” However, in a typical trust for a young beneficiary, the trust will hold onto the money until a set age reached by the beneficiary, often 25 or 30 or pay out fractions of the trust funds every few years until all funds are paid out. At that age, the beneficiary is given the funds and the trust, now empty, terminates. However, many trusts also contain provisions that if the beneficiary is suffering from drug, alcohol or gambling addictions or if the money is likely to go to a creditor if distributed, the trustee can hold onto the funds until it is safe to distribute them.

During the term of the trust, the trustee is usually instructed to make the money available to take care of the beneficiary’s “health, education, maintenance and support.” Much like a guardianship or custodial account for a minor, these funds will be available to pay for medical bills, room and board, tuition etc. If drafted properly, keeping the money in trust can help keep the inheritance safe from the beneficiary’s own recklessness, as well as from creditors or divorcing spouses, until they are hopefully old and wise enough to avoid these mistakes and manage the money on their own. When large sums of money are at play, some people view the creditor protections offered by trusts as so beneficial that the payout age is either much later in life or write their trusts to exist for the entire length of the beneficiary’s life, with a variety of options for how the remainder is paid out after their death.

The final type of inheritance a minor may receive are funds under UTMA or UGMA designations. The two types of accounts have some differences, mainly relating to investment options and tax implications, but for the broad overview offered here, they can be used interchangeably. Under these Acts, someone writing a will can specify the minor as the beneficiary of the assets to be managed under UTMA and name a custodian to manage the inheritance up until a listed age or age 21 in Wisconsin, whichever is sooner. For example, a will might state “To my nephew John Doe, I leave a specific bequest of $10,000 to his mother, Jane Doe, as custodian for John Doe, under Wisconsin Uniform Transfers to Minors Act to age 21.” While not offering all of the flexibility and options for longer retention periods available using trust funds, using these types of accounts are a simple and cheap way to address the control of funds intended for minor beneficiaries. If assets are left to a minor and the deceased did not name a custodian in the estate plan, in Wisconsin, the person handling the estate (either the executor of the will or the trustee of the trust) can create a UTMA account but it must end at age 18 and if the assets exceed $10,000, then the supervising court must approve it.

When choosing which of these methods are appropriate for your estate planning, there are a number of factors to consider, including: the likelihood of assets passing to a minor, the amount of money involved, and the character and maturity of the potential beneficiary, as well as their parents or guardians who may take control over the money. An estate planning attorney can help you determine the best option for your situation and to correctly implement those choices as part of your estate plan.

 

A last will and testament, along with other important estate planning documents, records a person’s decisions regarding the disposition of their property upon their death. Once you turn 18, you can write and amend your estate planning at any point during your life, so long as you have a “sound mind” at the time you execute the documents.

Like most states, Wisconsin’s laws on the mental capacity required to make and amend estate planning documents find their basis in the English common law. The exact language is found in Wisconsin Statute Section 853.01, which states that “Any person of sound mind 18 years of age or older may make and revoke a will.” While the age requirement is straightforward, the exact requirements of having a “sound mind” are less obvious.

To begin with, it should be noted that the capacity to make estate planning decisions, also known as “testamentary capacity,” is a distinct analysis from other types of capacity related questions. Someone may no longer be capable of living on their own due to mental decline but still may have the capacity to make or amend their estate planning. Even being under the legal guardianship of another does not itself prove the person lacked testamentary capacity.

Unfortunately, a clear and simple test is impossible because mental capacity exists on a multi-dimensional spectrum, while the legal analysis requires a “yes” or “no” answer. Borrowing from the common law tradition, Wisconsin cases have established a three-part test to determine on a case by case basis whether someone was of sound mind at the time of a document’s execution:

(1) The person executing the estate planning documents, also known as the “testator” must understand the nature and extent of his or her estate. This does not require an exact knowledge of investment allocation or dollar signs, but generally the testator should be able to roughly identify what assets they own and about how much they are worth.

(2) The testator must understand who the “natural objects of his or her bounty” are. Unlike some countries, in the United States adult children are not legally entitled to inherit anything from their parents, and subject to a number of limitations, spouses are not legally entitled to inherit from one another either. However, this test requires that at the time the testator made the estate planning decisions, they at least understood which individuals would be expected to receive their estate, usually this means the testator’s spouse or children.

(3) The testator must be able to form a rational conclusion on the selection of beneficiaries and the disposition of the estate. This requirement roughly translates to at least a basic understanding of the facts regarding their family situation and the effect of the estate planning documents. The testator is not required to have a detailed understanding of all of the exact workings of their estate planning documents so long as they basically understand the end-result.

In short, the requirements boil down to: you need to know roughly what you have, who would be expected to receive it and how the estate documents you are signing will affect where things go.

Because the bar for testamentary capacity is somewhat low, applying the three-part test sometimes leads to results where a court finds the testator had a sound mind but where the lay person would probably not think so. A good example of this is the rule for persons suffering from “insane delusions.” If a testator believes all manner of conspiracy theories and holds absurd opinions on matters, but understands their estate, the natural objects of their bounty, and the general effect of the plan they are signing, they likely have proper capacity and a sound mind for estate planning purposes. There is some room for challenge if the insane delusion “materially affected” the disposition because it can be argued the insane delusion impacted their ability to meet the prongs of the test, but even then, these challenges are difficult as courts are usually reluctant to weigh in on whether a belief is “insane” or not. The line between eccentricity and insanity is a difficult one to draw. A now infamous 1947 case is an often-cited cautionary tale of a court extending its analysis past strict legal questions as several male judges weighed in on whether a woman was “insane” for disliking men and giving her fortune to a women’s charity. Needless to say, the case has not aged well.

As an example of an insane delusion “materially affecting” the disposition, consider the following. If a parent disinherited you and also believes aliens have infiltrated our society, then the decision will likely stand if the three factors of the test are met. In contrast, if a parent disinherited you because they believe you are an alien who infiltrated our society, then you may have an argument to challenge the will because the insane delusion affected the ability of the parent to rationally select beneficiaries under the third factor of the test.

The three-factor test is analyzed at the time the document is executed, and it is possible that someone may lack capacity one day and have it the next. It is common for people suffering from certain types of cognitive decline to have good days and bad days. While this type of situation poses certain evidentiary hurdles if a challenge is brought, there is nothing inherently invalid about documents executed during a period where the signor temporarily has a sound mind. This is sometimes referred to as a “lucid period,” and in these situations it is usually wise to take extra care to record the evidence of capacity at the time of document execution. This is especially true if someone in the family is going to be upset with their treatment under the plan, as it increases the odds of a legal challenge.

Even if a testator has a “sound mind” as defined in the three-part test, a will, or portion of a will, may be challenged if an individual exercised “undue influence” over the testator to secure a benefit for themselves. Undue influence is beyond the scope of this article, but generally refers to a situation where someone has improperly applied their influence to get someone to change their estate planning to benefit themselves. One of the requirements for an undue influence claim is that the testator was “vulnerable” to undue influence, usually meaning some level of cognitive impairment, but not to the level of lacking a sound mind for estate planning purposes.

If a testator lacked a sound mind when they created or changed their estate planning directives, then those decisions, in theory, will not be valid or effective at their death. In practice, the technically invalid documents will be submitted to the court, and, if properly executed, will be presumed valid until an interested party to the estate proceedings formally challenges the documents within the required time frame. If no one raises the issue, the court overseeing the estate will have no way of knowing the validity of the presented documents is in question and will likely approve whatever distributions are called for in them. Claims not timely brought are forfeited, as courts have a legitimate interest in bringing all matters relating to an estate to rest within a reasonable amount of time following the death of the individual.

If you have questions or concerns about testamentary capacity or other estate planning topics, you should discuss them with an estate planning attorney.