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What You Can Do To Minimize the Likelihood of Someone Contesting Your Will

In our first two posts in this series, we discussed who has legal standing to challenge a will and what grounds may form the basis of a will contest. In this third and final post on will contests, we will introduce a few actions you can take to minimize the chances of someone contesting your will.

Keep it private

By ensuring that the contents of your will and/or trust are not known to anyone but your attorney, no one will have knowledge of your previous estate plan’s provisions if you later change your mind. All you need to do is provide your family or named executor(s) with your attorney’s contact information and the location of your original estate planning documents. Note that there are certain circumstances where advance notice of certain estate plan provisions is warranted, such as the designation of the guardians of your dependents, particularly those of children with lifelong disabilities. In addition, if you decide to amend your will or trust to change beneficiaries or fiduciaries, consider having your attorney draft an entirely new will instead of a codicil, and a complete restatement of your trust instead of an amendment of a few provisions. This can generally be done at minimal additional expense but provides an important safeguard – any attempt after your death by an interested party to gain knowledge of your previous will (if not destroyed) or first iteration of your trust, would require bringing a legal action, usually at their own expense.

Create a revocable living trust

A revocable living trust that has been in operation for a long time is very difficult to contest – it is hard to prove that undue influence, duress or fraud have been taking place over the course of many years, or that the testator lacked testamentary capacity many years ago.

No contest clause

Every will and trust should include a “no contest clause,” a provision that states that anyone who contests your will – and their heirs – will receive nothing if they challenge your estate plan. This is generally a good preventative measure, but note that it will not deter someone who has been disinherited or who is particularly determined to receive more than what you have provided them.

Be fair

Regardless of their financial situation, most children expect to receive the same inheritance as their siblings. If yours is a blended family, take into consideration the relationships between your family members and don’t hesitate to discuss various options with your estate planning attorney.

Work with an experienced estate planning attorney

Qualified and responsible lawyers do not draft wills for individuals who lack capacity, and do not allow relatives or other parties to take part in consultations or signings. Drafting and execution mistakes are uncommon, and there should be no reason for a lawyer to influence their client, pressure them to leave their property to a specific person or entity, or engage in fraud. In addition, your lawyer cannot be your beneficiary and are generally not permitted to appoint themselves as executors/trustees without first sending their clients out for an independent consultation with a lawyer from another firm.

California estate planning attorneys

There is no way to ensure that your estate plan will go unchallenged, but you can minimize the chances of that happening by taking steps that will make it not worthwhile for anyone to do so. For assistance, contact the estate and tax planning attorneys at Moskowitz, LLP.

Grounds To Contest a Will

When Mickey Rooney died in 2014 at the age of 93, his will was contested by his estranged wife and biological children. He had disinherited them and left his meagre estate to a stepson and the stepson’s wife, who had served as Rooney’s caretakers for the last two years of his life.

Rooney’s executor stated on CNN that Rooney was clearly of sound mind when he signed his will and that the challenge was “totally without merit” since Rooney signed his will right after filming his scenes in “Night at the Museum,” during which he had no difficulty remembering his lines. The claims were eventually dropped and the will was probated.

Grounds for a Will Contest

A will or trust can be contested on the following grounds:

  • Lack of testamentary capacity. Where the mental state of the testator is challenged. A decedent may be found to lack testamentary capacity if they do not know: (1) What property they own, (2) the natural objects of their bounty (e.g., their relatives and heirs), (3) the nature of a will and how they are disposing of their property, and (4) how all these things together affect the ultimate disposition of their property.
  • Undue influence. Where a person has imposed upon the free will of the testator and has excessively benefitted from their position of power over them.
  • Duress. A form of undue influence where the testator is compelled to execute a will following threats of violence or another wrongful act.
  • Fraud. There are two kinds of testamentary fraud: (1) Fraud in the inducement, where the testator is fooled into believing false facts that are instrumental in causing them to make a testamentary gift that they otherwise would not have made; and (2) fraud in the execution, where a person misrepresents a document for signing as the testator’s will when it is in fact a different document that is more to their personal advantage.
  • Mistake. Technical defect due to failure to adhere to legal formalities in the drafting or signing of the will, other errors and omissions (e.g., missing provisions, not witnessed or witnessed improperly). Note that most courts will attempt to implement the provisions of a will despite a mistake, and may even create a “constructive trust” in order to implement the plain intent of the testator.
  • Revocation. Where another will that is dated more recently than the one submitted to the court is produced.

Note that laws regarding will and trust creation and execution tend to vary somewhat from state to state, so make sure that your estate planning attorney is licensed in your jurisdiction.

In our last post in this series, we will discuss ways to minimize the chances of someone contesting the terms of your will or revocable living trust.