Estate Planning FAQ

How Can I Minimize the Risk of a Will Contest?

Some of the most common reasons why wills are contested by family members and others include:

  • Whether the testator had the capacity to make the will
  • Whether another person unduly influenced the testator
  • Whether the will was improperly executed under state law
  • Whether the will was forged

If a will is challenged, the court may take one of three actions: disallow the portion of the will that was challenged; admit an earlier will (if there is one); or invalidate the entire will and rule that the state's intestacy laws will determine who inherits the property.

There are some steps you can take to potentially lower the risk that your will will be contested after your passing. These include:

Certify your capacity. One option is to have the execution of your will videotaped. During the recording, you could answer questions that would establish your mental capacity to make the will. You also could attach a certified letter from your physician to your will, stating that you are mentally competent to execute the document. These options may not be acceptable in every jurisdiction.

Name an uninterested executor. If you name a close family member or someone who is a beneficiary under your will as executor, you are likely to upset other family members and beneficiaries. Some may feel they should have been appointed executor and others may believe it is unfair that the executor is also receiving some of your property under the will. It is best to avoid this conflict if at all possible and name a neutral, unbiased party as executor.

Do not use your will to explicitly disinherit someone. While it is your will and you do not have to leave anything to anyone you do not want to, using your will as a means to get revenge against a wayward child or grandchild generally is not best. Rather, you are more likely to ensure that your will is contested by the disinherited party.

Insert a no-contest clause. You can insert a no-contest, or in terrorem, clause into your will to deter beneficiaries from contesting your decisions. In terrorem clauses work to disinherit anyone who challenges the will. However, most states do not enforce no-contest clauses because of their ability to stifle legitimate, good faith claims against the will's validity.

Take advantage of lifetime gifts. There are tax incentives for giving away a certain amount of your assets prior to death. By taking advantage of these gifts, you can minimize the amount of property in your will, and thereby may be able to minimize the opportunity for a will contest.

Work with an experienced attorney. It is best to hire an experienced estate planning attorney to draft your will. He or she will be well-versed in your state's laws and the requirements to execute a valid will. An attorney also will be able to inform you on the types of measures that are accepted in your jurisdiction to try to prevent will contests, such as no-contest clauses.

There is no way to guarantee that your will will not be contested after your passing. However, there may be measures you can take now to minimize this risk. To learn more, contact a knowledgeable estate planning attorney in your area today.

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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