The Fiduciary Advisor

Proper Estate Planning May Prevent a Will Contest

Will contests are a sad reality and while there is no guarantee, with proper planning a contest may be avoided.  A will contest occurs when a disgruntled potential beneficiary of an estate challenges the validity of a Will.  A will contest is more likely to occur in blended families, same-sex relationships, when a child is disinherited or when the children are not treated equally. The following are a few points that will help safe guard against a disgruntled potential beneficiary.

1. Make a Will sooner rather than later.  Many will contests arise when a Will is signed shortly before the death of the testator.  The best time to make a Will is early in life when there are no questions of competency.
2. Review your Will.  Every five years document that you reviewed your Will and either are still in agreement with its contents or make the necessary changes.  Update your Will to reflect any additions to your family and remove any individuals that have predeceased you.  Review your Will for any ambiguous distributions.  Each distribution should be clear and include a specific individual or class of individuals that is defined.
3. Explain a disinheritance or inequity in distributions.  Acknowledge your spouse and potential beneficiaries (e.g. children).  If one of these individuals is not receiving an inheritance, make a statement showing that this is intentional.  If your estate is not equally divided between your children, make a statement explaining why.  If you include individuals (e.g. step-children), make a statement explaining why.  Such statements do not have to be expansive, a single sentence may serve as establishing your intent.
4. Be clear as to your intent if you have a blended family.  Regardless of how close your children are from the first marriage with your current spouse and other children in the family, death may bring out bitter rivalry.
5. Retain prior Wills.  If the most current will is successfully challenged, the one before it may still stand. Showing a pattern of a similar distributive scheme over several Wills reinforces your intent.  If major changes are made to your Will, document the reasoning for such change.
6. Be aware of Will Kits.  Recently a judge shared that a large portion of her Will contests arise out of “Do It Yourself Wills.”  Such Wills are extremely generic, rarely address the unique needs necessary to properly distribute an estate or take care of minor children and often are not executed properly in accordance with state law.  The money saved on using one of these kits as opposed to using an experience estate attorney is often expended (plus more) in addressing the challenges such Wills cause during the administration process.
7. Establish your competence, as well as the lack of undue influence upon you by other people, at the time that your will is being signed.  Ask your attorney to make a memorandum to your file acknowledging your competency.  Have disinterested individuals witness the Will to diminish the ability of a challenge of undue influence.
8. Share the contents of your Will and document that such discussion occurred.  Such discussion may be in general terms.  It is more difficult for someone to challenge a Will if they were told prior to the testator’s death how the estate would be distributed and why the testator has chosen such distribution scheme.

We all hope that our loved ones will support one another upon our death and work collaboratively to implement our wishes.  However, grieving takes many forms and sometimes it includes a Will challenge.  With proper preparation and documentation, a Will contest may be prevented or if one is initiated, your intent will more likely prevail.  As attorneys who serve as counsel to individuals defending a Will, the trust and estate attorneys at Obermayer understand the emotional turmoil such lawsuits create.  As such, we work with and support our clients during the estate planning process to fortify their estate plan against attack, and if necessary, we stand and defend a client’s intent.