Getting your will drafted is a daunting enough process without worrying about whether or not to disinherit family. If you anticipate that anyone will try to challenge your will, then your estate planning documents should provide as much protection as possible against a “will contest”.
A will contest may be brought by any person who is directly and negatively affected by the terms stated in the decedent’s will. For example, an heir who receives nothing would have standing (i.e. the legal right) to contest the will. On the other hand, a caretaker child who receives amounts equal to her absent siblings would not have standing to contest since she would receive the same inheritance if the will failed.
Examples of Situations Ripe for a Will Contest
If you or a family member is experiencing any of the following situations, you should probably take extra precautions in your estate planning:
- Blended Family – For example, you favor a new spouse over your children from a prior marriage
- Conditions on Gifts – You place a condition on the inheritance, such as requiring the beneficiary to marry someone of a certain religion.
- Disinheritance – You disinherit a child in your will, or worse, you fail to mention the child in your will. Another example is if you give unequal gifts to your children or similarly situated relatives (such as your cousins or your nieces and nephews).
- Estate Value in Question – You have hidden assets or the value of your estate assets is in question.
- Fraud – You signed the will while relying on some trick or misinformation.
- Inconsistency – Your will and trust are not consistent with one another.
- Last Minute Changes – You change your will on your deathbed or give large gifts right before your death.
- Lifestyle – Your will reflects a lifestyle that differs from the values of the potential heirs.
- Mental Capacity in Question – When you signed your will, you lacked the ability to understand the extent of your property, your natural heirs, and who receives what under your will.
- Undue Influence – One of your heirs has convinced you to change your will in her favor at the expense of other heirs.
10 Ways to Mitigate Against a Potential Will Contest
Proper documentation, close review of your overall estate plan, and clear communication can deter or even eliminate a potential challenge to your will:
- Document Your Mental Capacity – Make sure your attorney clearly establishes your mental capacity at the time you sign your will. Get evidence of your abilities from a doctor if necessary.
- No-Contest Clause – Here, you would add a clause to your will saying that a beneficiary who challenges the will shall forfeit their entire gift.
- In both Maryland and Pennsylvania, a no-contest clause is unenforceable if the objector has “probable cause” to challenge the will (i.e. has a reasonable belief that the contest will be successful).
- In Virginia, such a clause is enforceable even if the objector has probable cause.
- Be sure to check your state law before attempting this strategy.
- Videotape the Signing of Your Will – This would ordinarily seem to be an effective way of proving your competence. However, some attorneys feel that if you go to all that trouble, it could serve as a red flag that competence is actually at issue. In addition, no U.S. state allows a video as the only proof of capacity, due to the ease of alteration.
- Create a Revocable Living Trust – In general, the living trust is viewed as more enforceable than a will. One major reason is that a person who actively used a trust during his lifetime probably did not do so under any undue influence or fraud.
Review of Your Plan
- Account for Property Outside of Your Will – Be careful that non-probate assets have been taken under consideration in your estate plan. For example, say you currently have a joint bank or brokerage account with your child. In all states, this child will control the entire account upon your death, despite anything the will might state. Make sure that this is your intention, especially if the joint account is sizable and/or creates unequal benefits.
- Pre-Mortem Probate – Six states, Alaska, Arkansas, Delaware, Nevada, North Dakota and Ohio, allow the court to review your will before your death to help determine its validity.
- Clearly State Your Intentions – In your will, clearly state your intention to disinherit an heir instead of just omitting his name. Some lawyers will include clauses that explain why you wish to give more to one child than another.
- Write a Side Memorandum – Explain the entire thought process behind your estate plan in a separate, unenforceable document that accompanies the will.
- Make a Deal with the Potential Contester – If you anticipate trouble, you can possibly avoid a challenge by making a contract with the objector. For instance, you might sign a deal with the objector to give him a gift during your life in exchange for him not contesting the will after your death.
- Work It Out – Talk things out with your family while you still have the chance. This is ideally the best solution of all.
- Pre-Death Will Validation (www.pennsylvaniafiduciarylitigation.com)
- Pre-Death Will and Trust Contests Back in the News (wills.about.com)
- Reason To Make An Estate Plan #10 (floridaestateplanninglawyerblog.com)