How to Prevent Will Contests in Your Estate– Posted by Alison J. Warden
It is important to you that your assets are transferred upon your death in an efficient and effective manner. What if a disgruntled heir decides to contest your Will in court? This could derail your final wishes, drain your estate of its value, and permanently damage relationships between family members that you love. Given these risks, special care should be taken in the estate planning process to minimize any such problems or issues.
What is a Will Contest?
A Will contest is a lawsuit in which an “interested person” files a petition objecting to the validity of a deceased person’s Last Will and Testament. In Washington, a Will contest must be filed within four months after a probate is filed, or the Will contest is forever barred. An “interested person” is generally an heir who is directly and negatively affected by the terms of the Will and who would stand to gain should the Will be declared invalid.
A person contesting a Will must base their lawsuit on legal grounds. Merely feeling angry, disappointed, hurt or surprised will not qualify as legal grounds. Generally, legal grounds for a Will contest fall into one of the following categories:
1. The Will was not properly signed and witnessed as required by state law.
2. The person making the Will (the “testator”) lacked testamentary capacity (i.e., was not of sound mind) or suffered from delusions that prevented them from being able to create a valid Will.
3. The testator was unduly influenced by another person to create or sign the Will, such that the true intent of the testator was not achieved.
4. The Will is a forgery or was procured by fraud or trick.
5. The Will being offered for probate is not the decedent’s most recent Will or was revoked prior to the decedent’s death.
If a Will contest is successful, then all or part of the contested Will may be disregarded, and/or a prior Will may be reinstated. If an entire Will is disregarded and if no prior Will is reinstated, then the assets would be distributed to the relatives entitled to take under the state’s intestacy law (as if a Will was never created).
Reducing the Risk of a Will Contest
While there is no guaranteed method of preventing a Will contest, you can certainly take protective measures, several of which are listed below, to reduce the risk of a contest being filed in your estate. In all cases, however, these measures should be undertaken only with the assistance and advice of an experience estate planning attorney who can evaluate the appropriateness of each suggestion in respect to your specific situation.
1. Include a No-Contest Clause in your Will. A no-contest clause (also referred to as an “in terrorem” clause) provides that a beneficiary who challenges the Will forfeits any gift that he or she would have otherwise received under the Will. In Washington, a no-contest clause is enforceable against a contesting beneficiary, unless the beneficiary establishes that the Will contest was made in good faith and there was probable cause.
2. Consider Alternatives to Total Disinheritance. Complete disinheritance of an immediate family member may invite a Will contest. If you intend to disinherit a non-favored child or a child of a first marriage, it may be worth considering passing a smaller legacy to such person rather than outright disinheriting them. Such gift could work in tandem with a no-contest clause, described above, to create a disincentive for the child to contest the Will.
3. State Your Intentions in the Will. If you intend to disinherit a child, spouse, or another person who would normally expect to be included in your Will, clearly state in the Will your intentions to disinherit such person. In other words, do not just omit that person’s name. Depending on the reason for the disinheritance, your attorney may recommend including a clause in the Will or an accompanying letter that explains your rationale in support of your decision.
4. Share Your Intentions Before You Die. Although it is not necessary to let your adult children know the details of your estate plan, communicating your general intentions and the reasons for any provisions that your family might interpret as unequal or unfair can take the sting out of what would otherwise be a surprising and painful disappointment at a time when your family is grieving your death.
5. Document Your Mental Capacity. If you are concerned that someone may try to raise the issue of your mental capacity as grounds for a Will contest, consider obtaining a letter from your doctor before shortly before you sign the Will, documenting that you know your family members, understand the general nature and extent of your property, and are not delusional.
6. Do Not “Do It Yourself.” “Do-it-yourself” estate planning forms have resulted in numerous Will contests being filed across the country, one of which can be read about here. The risks inherent in creating a Will without the help of a competent estate planning attorney are several fold, including faulty execution of the documents, defective drafting, accidental disinheritance, and ultimately the danger that your wishes will not be followed. When you use the services of an experienced estate planning attorney, you ensure that your Will reflects your wishes and that your Will is executed in compliance with applicable state law. Additionally, if issues of mental capacity or undue influence later arise, your attorney can provide support that you signed your Will while of sound mind and without any apparent potential undue influence. All of these benefits reduce the likelihood of a Will contest in your estate.
The Bottom Line
Protecting against a Will contest is a critical part of estate planning, especially if you think that a loved one may be angry or hurt by the provisions in your Will. The first step is to engage an experienced estate planning attorney who can help you create a thoughtful estate plan that ensures your legacy while incorporating appropriate and protective measures, customized to your specific situation. If you would like to discuss your overall objectives and ways in which you can minimize the risks of a Will contest, feel free to contact me or one of our other estate planning attorneys at Lasher Holzapfel Sperry & Ebberson, PLLC.