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Making estate plans or plan amendments when faced with grave illness

by Legacy Plan | November 12, 2015

Many people make the mistake of thinking that they have an unlimited time on this earth. Others are directly faced with the knowledge that their remaining time is very limited. For those in this latter group, they should act swiftly to make sure that they have an estate plan in place and that it is properly updated. They should not let their grave illness stop them from planning, as proof of serious physical illness alone is not enough to constitute an unsound mental state that would invalidate any plans (or plan changes) they make.

Being near the end of one's life can prompt a variety of reactions. For many people, one reaction they experience is a strong desire to put their estate affairs in order. For anyone in this position, this is an urge worth following. Courts have recognized that, even if you are gravely physically ill, you can still make or change an estate plan as long as you have a sound mental state. A challenge to your estate plan based solely upon your physical illness will not succeed in overturning the plan you put down in your estate documents.

One recent case exploring these issues came from Maryland and involved the estate plan of a man named Eugene Zook. Mr. Zook created a living trust in 2007. That trust called for his assets to be distributed, upon his death, to his three children — a fairly typical plan for a parent. The next year, Mr. Zook returned to his lawyer's office. He was seriously ill as a result of cancer. Mr. Zook wanted to (and did) amend his trust. Mr. Zook's amended trust named his daughter, Susan, as trustee and placed the 1/3 shared of another daughter, Mary, into a special trust that would pay out Mary's share in 20 payments over a period of 10 years. This kind of arrangement, often called a “spendthrift trust,” can be very useful for beneficiaries who are not good with money or have complicated legal situations that would make receiving large sums of money all at once potentially harmful.

Only 22 days after he signed the trust amendment, Mr. Zook died. Shortly thereafter, Mary sued to invalidate the 2008 amendment to her father's trust. She argued to the court that her father was not of sound mind when he signed the amendment document. The court rejected this challenge. The only proof that Mary had to offer the court was Mr. Zook's cancer. The court's ruling made it clear that evidence of grave physical illness like cancer alone is not enough to show that a person is not of sound enough mind to make or change an estate plan.

Being seriously or gravely ill, even if you know you are seriously or gravely ill, is not a barrier by itself to making, or changing, an estate plan. To the contrary, if you have your mental faculties, you should act very swiftly to make sure that you have a plan in place and that your plan is correctly updated. That way, you can be certain that your loved ones will know what your objectives are for your estate. With that accomplished, you can be sure that the legacy you leave is exactly what you wanted.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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