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Thursday, July 7, 2016

Grandma's will is pretty unpopular. Was she too old to make a will?

Isn't it funny how an older person who makes an unpopular will is often accused by his or her family of not knowing what he or she was doing? Only the ones who agree with the disposition under the will are the ones who think the senior had mental capacity. A reader recently sent me a note which is a great example of that sort of thinking:

"My grandma made a new will when she was 95. My aunt always shared my grandma's cottage with us while she acted as grandma's power of attorney, and all of us grand-kids have keys to it. Now my grandma is willing the cottage to one of her daughters and we think it's because she didn't want it sold out of the family. The one who is getting the cottage is not being fair or letting us use it. Is there any law saying 95 is too old to make a will?"

No, there is no law saying that 95 is too old to make a will. I personally have made wills for people more than 100 years old. The litmus test is not age but mental capacity and plenty of seniors have full mental capacity for their entire lives.

I'm having trouble with your assumption that what your grandmother says in her will is not what she really wants. If she didn't want to leave her cottage to her daughter, she didn't have to. If she wanted to leave it to her grandchildren, she could have done so. The fact that her intentions for her own property do not match your wishes just doesn't matter. She can do what she wants with her own cottage. You'll have to suck it up.

It also baffles me that you think giving the cottage to her daughter somehow defeats an intention to keep it in the family. Last time I looked, a daughter was family.

Assuming that your grandmother has mental capacity to make a will, she can leave her property to whomever she wishes. It's unfortunate for you that it upsets the status quo, but that does not mean you should be looking for ways to overturn her will. I notice that whenever a senior makes a financial decision that is unpopular, his or her family members automatically turn to the possibility of mental frailty on the part of the senior, rather than looking at the possibility of sour grapes by the rest of the family.

I cannot tell from your question whether your grandmother made her will before your aunt started acting as her POA. In terms of mental capacity, this could be problematic. If she made her will while the POA was in effect, it could cast doubt on her ability to make the will, based on the fact that a POA is not usually used while the donor still has capacity. Even that is not a hard-and-fast rule though, because sometimes seniors do put immediate enduring POAs into effect if they want help with the banking.

You should know that if your grandmother's will were to be challenged successfully, you are not likely to be a beneficiary of her estate anyway. Intestacy laws would not include you unless your parent on your grandmother's side died before your grandmother did. So think twice before  you start wishing that will away.

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