Q. My elderly neighbor just told me he has added me to his will. I help him around his property sometimes and with shopping. His adult children live far away. I’m nervous that they will think I made him change his will. What can I do to protect myself from a possible legal mess?
— Trying to avoid trouble
A. That’s a very generous gesture by your neighbor.
We’re guessing he intends to show you how much he appreciates your assistance, and we hope his children also appreciate the help that you have provided their father given that they live so far away.
The easiest way to avoid the suspicions of the children is simply to allow your neighbor to plan his affairs without your participation, said Gary Botwinick, an estate planning attorney and chair of the taxation/trusts and estates department at Einhorn Harris in Denville.
Your neighbor should retain his own lawyer who he will consult with, and you should avoid participating in the process, he said.
Still, there are many grounds under which an individual’s will can be challenged.
In the situation you’ve described, any challenge would likely be based upon either lack of testamentary capacity or undue influence, Botwinick said.
A challenger might assert that the testator — the individual for whom the will is written — lacked the necessary testamentary capacity to execute a will, Botwinick said.
“To make a valid will in New Jersey, the testator must be over the age of 18 and of sound mind,” he said.
The standard for testamentary capacity in New Jersey is very low.
“In a nutshell, and on a very basic level, if your neighbor knows what his estate consists of, can identify the members of his family, knows that he is signing a will, and knows the manner of disposition under the will, then he has sufficient capacity to execute a valid will, Botwinick said.
Alternatively, a challenger might assert that another individual exerted undue influence over the testator.
“Again, in a nutshell, to prove undue influence, a challenger would have to prove that there has been mental, moral or physical exertion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and will, and accepting, instead, the domination and influence of another,” he said.
It sounds as if your neighbor lives on his own and only needs your limited assistance on certain specific tasks. It also sounds as if he intends to leave something in his will for you rather than leaving the entire estate to you.
If that’s the case, it is likely that a challenge on lack of testamentary capacity would be unsuccessful, Botwinick said.
Also, he said, so long as your relationship with your neighbor is limited to these very specific tasks — such as helping around the house and shopping — and you do not pressure your neighbor to make a provision for you in his will, then it is unlikely that a challenge based upon undue influence would be successful either, Botwinick said.
He recommends you advise your neighbor to meet with an attorney qualified to handle estate planning matters. It would be best if you did not select the attorney for the neighbor, attend the meeting with the attorney, or even drive the neighbor to the attorney, he said.
“So long as he makes all of the arrangements himself, independently consults with the attorney and properly executes the documents, then you should have little to fear,” he said.
Of course, you cannot ensure that there will not be a challenge, but you can certainly avoid the appearance that you had some role in the bequest.
“So long as you let your neighbor take care of his affairs himself, you should feel confident that your neighbor’s wishes will be carried out,” Botwinick said.
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