4 Reasons Your Will May Be Contested in Court
Having an updated last will and testament is more critical than ever, especially now. However, a will that is poorly created or not frequently updated can be vulnerable to contestation. What is contestation? It is the formal objection to a will's (or trust's) validity because it either: a) does not reflect the wishes of the person who created the will or b) because the will does not meet legal standards.
Will contests should be avoided at all costs. A will contest can derail your final wishes, rapidly deplete your estate, and wreak emotional havoc on the family members left behind. Fear not. With proper planning, you can prevent that from happening.
Who can contest a will?
Will contests are usually brought on by individuals (could be family members, close friends, or business partners) who believe they have been wrongly disinherited. However, not all of your family or friends can contest your will in court. They must have legal "standing" to file a lawsuit. Legal standing means that a person involved in a lawsuit will be personally affected by the case's outcome.
The following people can contest a will in probate court:
Current beneficiaries named in the will
Previous beneficiaries who were disinherited but were included in a previous will
An individual not named in the will but who would be eligible to inherit property based on a state's intestacy laws (typically a biological child or spouse)
If a will is successfully contested, the court will declare it invalid and "throw it out." If there is a previous will, then the court will abide by those terms. If there are no other estate planning documents, the state’s laws of intestacy will decide who inherits what property. As you might expect, this can be a disastrous outcome for your intended beneficiaries.
Planning tip: A trust can have superior benefits to a will. Trusts offer better asset protection and enhanced privacy by keeping your personal information out of probate (a public process all wills must go through). If you would like to learn more about the differences between trusts and will and see what a better fit for you is, call our office at (936) 410-4457.
What Are the Legal Grounds for Contesting a Will?
If a person does have the legal standing to challenge your will, they must prove that the will is invalid due to one of the four reasons below:
The will is incomplete or faulty. Each state has specific laws that dictate how a will or trust must be signed to be legally valid. A will that has not followed these rules—signed without the correct number of witnesses, signatures missing, or omitting important text—could be contested.
Lack of mental capacity. Having the capacity to make a will means that the person understands (a) their assets, (b) their family relationships, and (c) the legal effect of signing a will. Each state has laws that set the threshold that must be overcome to prove that a person lacked the sufficient mental capacity to sign a will.
The person making the will was unduly influenced into signing it. As people age and become physically and mentally weaker, others may exert influence over decisions, including how to plan their estate. Undue influence can be exerted on the young and the not-so-young. Undue influence is more than just nagging or verbal threats. It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.
The will was procured by fraud. A will or trust that is signed by someone who thinks they are signing some other type of document or a document with different provisions is one that is procured by fraud.
How to Avoid a Will Contest
Will contests are something you will want to avoid at all costs, considering the time and expense. A contest to your will may jeopardize your final wishes and cause unnecessary and painful conflict among your loved ones during an already emotionally trying time. To avoid these disastrous and painful scenarios, considr the following:
Do not "do it yourself"! Even the smallest mistake can leave your wishes vulnerable to being contested by an unhappy relative or business partner. Only an experienced estate planning attorney can help you create and maintain a plan that will discourage lawsuits.
Discuss your wishes with your family. It is vital to discuss your wishes with your family. You do not have to discuss all of the intimate details of your estate plan, but letting beneficiaries know of your wishes and setting expectations for your agents can help avoid future will contests.
Don’t just disinherit wayward child(ren). Instead of completely disinheriting a beneficiary who may squander their inheritance or use it against your wishes, you can hold their inheritance in a lifetime discretionary trust. A trusted individual or third party would oversee the trust. Your beneficiary would receive distributions over time instead of outright cash in a lump sum.
Keep your will up to date. Life changes—people are born and die, property is acquired, marriages happen, and your wishes may change. Your will is only effective when it reflects these changing circumstances. Having an updated will/estate plan that encompasses your current goals will be better at discouraging any future challenges.
The Bottom Line on Will Contests
Will and trust contests are on the rise. Putting together an estate plan designed to avoid challenges will give you and your loved one peace of mind.
While it is easy to assume that a will or trust signed in an attorney’s office is valid, this is not always the case. Attorneys who do not specialize in estate planning may be unfamiliar with the formalities required to make a will or trust legally valid in their state. Therefore, you need to work with an attorney familiar with your state's estate planning laws. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family.
Our office can help you create and maintain an estate plan that will be difficult to overturn. Give us a call today.