Your controversial Will can now be preapproved by the Probate Court while you are still alive. Effective July 1, 2014, the New Hampshire Legislature made several revisions to the Will and Trust statutes; one of which permits a person who drafts a Will and notices all interested parties to go before a probate division of the circuit court and get it approved thereby later minimizing the likelihood of family fights over his estate after his death. This pre-death Will approval in many Wills would be an inappropriate waste of money, yet in a controversial Will it may be money well spent. For example, if you are in your Will leaving an uneven distribution to one of your children that the others may dispute or providing a large distribution to a non-relative friend and are concerned that relatives may suggest that you either lacked the mental capacity or were unduly influenced in entering into that Will (see previous post here), a hearing before a circuit court probate judge where he and others can ask questions of you to determine why you are doing what you are doing could save a lot of time and money.
However if someone is truly unduly influencing the Will maker, such a hearing could be used to increase that undue influencer’s chances of keeping the gifts since it is often less likely that a son or daughter would want to face their parent and state that she is mentally incompetent or unduly manipulated into entering into the Will. When faced with such a challenge, it may be more likely that a child will opt to not object allowing the undue influencer to get his way so that the children can still spend quality time with their parent during her remaining years.
Lastly, this statute does not affect what is called “lifetime transfers” such as changing the name on a bank account so that it is payable upon death to another. Those transfers happen automatically upon death without the need of a Will being probated and still could be subject to claims of lack of mental competence or undue influence.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].