In most cases, by the time family members read the deceased’s will, they already know its contents and don’t object to them. But in some instances, wills can leave relatives feeling deceived, angry, and ready to take legal action. To prevent someone from contesting your will, you need to make your wishes known as clearly as possible — both now and after your death.
Opening a Dialogue
Before you set the table for your will, the centerpiece of any comprehensive estate plan, discuss estate matters with close family members who likely will be affected. This may include children, siblings, adult grandchildren, and possibly others. Present an outline regarding the disposition of your assets and other important aspects. Then listen to and consider the input of other family members, particularly if they raise issues you hadn’t considered.
Such discussions can head off potential problems and better prepare your heirs. It certainly avoids the kind of will-reading shockers often depicted in movies. You don’t have to provide all of the specifics. For instance, there’s no need to publicize restrictions that may be placed on a spendthrift son or daughter.
Although absolute guarantees do not exist, consider the following methods for shielding your will from a legal challenge:
Draft a no-contest clause: The no-contest clause, also called an in terrorem clause, provides that any person in your will who challenges the content becomes excluded from your estate. This puts the onus squarely on beneficiaries. If they assert that the estate isn’t divided equitably, they risk receiving nothing. Be aware that, in some states, this clause may be subject to certain exceptions. Talk to your estate planning advisor for specifics.
Choose witnesses well: Use witnesses who know you well, such as close friends or business associates. They can convincingly state that you remained of sound mind when you made your will. Also, choose witnesses in good health, preferably younger than you and easily traceable. Finally, for greater protection, you might include more witnesses than legally required.
Obtain a physician’s note: Extremely ill or elderly individuals should obtain a note from a physician about their health status. For instance, it can state that you have the requisite mental capacity to make estate planning decisions. One must obtain the physician’s note close to the time of the will signing. A note from several years ago would likely carry little weight in court.
Make a video: Depending on the situation, a video recording may serve as the sole will or a supplement to a written will. It offers the obvious benefit of depicting, through your demeanor, tone and inflection, your mental condition. Also, your beneficiaries might benefit emotionally by having this final message viewed. But a video recording could backfire if you show signs of being incompetent or unduly influenced by others. Plus, the video may be altered if not carefully stored. Finally, state laws could have an impact, so consult your attorney.
Draft a revocable living trust: Many often view this trust type as a vehicle that discourages will contests. Assets transferred to the trust are governed by the terms of the trust, not your will, and are exempted from the probate process. Although the trust owns those assets, you retain some control over them during your lifetime. For example, you can change trust beneficiaries or even revoke the trust entirely. Generally, a living trust complements a will.
Legal and Financial Considerations
If you’re concerned that a family member might try to contest your will, discuss the issue with an experienced attorney. Your attorney can suggest solutions that minimize the likelihood of a contest — and help ensure that your estate prevails in a court challenge. Also work with financial advisors to establish an estate plan that will maximize what you leave your loved ones.
© Copyright 2021 Thomson Reuters.
Disclaimer of Liability
Our firm provides the information in this e-newsletter for general guidance only, and does not constitute the provision of legal advice, tax advice, accounting services, investment advice or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal or other competent advisors. Before making any decision or taking any action, you should consult a professional advisor who has been provided with all pertinent facts relevant to your particular situation. Tax articles in this e-newsletter are not intended to be used, and cannot be used by any taxpayer, for the purpose of avoiding accuracy-related penalties that may be imposed on the taxpayer. The information is provided “as is,” with no assurance or guarantee of completeness, accuracy or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability and fitness for a particular purpose.