The “Late in Life” Will: How Courts View Changes Made Close to Death

Life is constantly changing, and people are free to change their estate plans as their circumstances change. They can change those plans all the way up until the end of their life. However, concerns can arise when a significant change appears inconsistent with the person’s previous wishes and circumstances. This is what you need to know about wills made later in life.

Why Be Suspicious about Wills Made Later in Life?

Wills made later in life often cause people to be more suspicious than those made earlier in life. Here are some of the reasons for suspicion:

• A significant change shortly after a medical diagnosis
• A substantial or unexpected change in beneficiaries
• A person who was previously close to family becoming isolated
• A new beneficiary receiving an unusually large inheritance
• The use of an unfamiliar attorney or last-minute estate-planning service
• Statements suggesting the person did not understand the new plan
• Evidence that the person was dependent on the new beneficiary 

Can the Will be Contested?

A will can be contested. A will contest is a legal proceeding in which an interested person challenges the validity of a will or certain provisions of it. Two things that a court might look at are testamentary capacity and undue influence:

What is Testamentary Capacity?

Testamentary capacity generally means having enough mental ability to understand that you are making a will, the general nature of your property, the people who would ordinarily be expected to benefit from your estate, and the basic effect of your estate plan. Under Florida law, the person making a will, known as the testator, must be at least 18 years old. The testator must also have sufficient mental capacity, or be of “sound mind,” when the will is signed.

A person does not necessarily need perfect memory or be free from illness to have sufficient capacity. A diagnosis of dementia or another cognitive condition does not automatically invalidate a will.

Capacity is often judged based on the person’s mental state at the time the will was signed. This can become especially important with wills made later in life, when memory loss, confusion, or other health concerns may be present. Evidence showing the person’s condition around the signing date can therefore become important if the will is later challenged.

What is Undue Influence?

Courts look for wills that reflect the wishes of the individual making it (the testator). Undue influence occurs when a person is pressured, manipulated, or persuaded into making a will or changing their estate plan in a way that does not reflect their own free and independent wishes. Influence can become improper when someone takes advantage of the testator’s age, illness, dependence, vulnerability, or trust.

It is important to distinguish ordinary persuasion or advice from undue influence. Family members can discuss estate planning with someone, but they cannot use threats, manipulation, deception, or excessive pressure to control the person’s decisions.

Some examples include:

Pressure from a family member: An adult child repeatedly pressures an elderly parent to change their will so that the child receives most or all of the estate.

Threats or intimidation: A beneficiary threatens to stop providing care or contact unless the testator leaves them a larger inheritance.

Taking advantage of vulnerability: A caregiver takes advantage of a testator who is seriously ill, isolated, or dependent on them and convinces the person to change their will.

Controlling access to others: Someone prevents the testator from speaking privately with other family members or their lawyer, thereby influencing the testator’s decisions.

Frequently Asked Questions

Is there an age where you’re too old to make a will?

No. There is generally no maximum age at which a person automatically becomes unable to make a valid will. Older age, physical illness, memory problems, or a diagnosis of dementia does not automatically invalidate a will. The key issue is whether there is testamentary capacity. A person must have sufficient mental ability to understand that they are making a will, understand the general nature of their property, recognize the people who would ordinarily be expected to benefit from their estate, and understand the basic effect of their decisions. 

Can anyone challenge a will made later in life?

No, not just anyone can contest a will. The only people permitted to legally challenge a will are interested parties. This may include certain beneficiaries, heirs, or individuals who would have inherited under an earlier will. 

Can a caregiver influence a late-in-life will?

Yes, a caregiver can influence a late-in-life will, but their involvement does not automatically mean that the will fails to reflect the testator’s true wishes. Caregivers may have close relationships with elderly or vulnerable individuals and may assist them with appointments, paperwork, or communication. However, concerns can arise when a caregiver becomes heavily involved in preparing or changing a will, especially if they receive a significant benefit. Courts may consider whether the testator understood and freely made their decisions without pressure or manipulation. Simply having a caregiver involved is not enough to prove undue influence.

If there is a new will, does it override the old one?

Someone can change their mind about what they want to happen to their estate, and so they may draft a new will. A properly executed later will can change, replace, or revoke provisions of an earlier will. However, the newer will does not automatically win just because it was signed later. It must meet the legal requirements for a valid will.

Contact an Experienced Florida Estate Planning Attorney 

If a will was made later in life, you might have questions about its validity or fairness. An experienced estate planning attorney can look at the will and discuss what options might be available to you.