Having an updated last will and testament is more important 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) doesn’t 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. Not only can a contest derail your final wishes, but it can also 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. We hope you understand that knowing an experienced attorney who focuses attention on healthcare issues, estate planning and probate is very important. If, after you read this, you have questions, contact attorney Brandon Erickson at O’Keeffe O’Brien Lyson Attorneys in Fargo – 701-235-8000.
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 have the ability to contest your will in court. They must have legal “standing” to file a lawsuit. Standing means that a person involved in a lawsuit will be personally affected by the outcome of the case.
The following people have the ability to contest a will in probate court:
- Current beneficiaries that are 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, then the court will declare the will 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: Depending on your circumstances and goals, a trust can have superior benefits to a will; like offering better asset protection and enhanced privacy by keeping your personal information out of probate (a public process all wills must go through). If you’d like to learn more about the differences between trusts and will, and see what is a better fit for you, call Brandon Erickson at 701-235-8000.
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 in order for it to be legally valid. A will that has not followed these rules—signed without the proper 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 sufficient mental capacity to sign a will.
- The person making the will was unduly influenced into signing it. As people age and become weaker both physically and mentally, 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
Considering the time and expense, will contests are something you’ll want to avoid at all costs. Not only would it jeopardize your final wishes but it also causes unnecessary and painful conflict among your loved ones during an already emotionally trying time. To avoid these disastrous and painful scenarios, consider 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 will be able to help you create and maintain a plan that will discourage lawsuits.
- Discuss your wishes with your family. It’s important to discuss your wishes with your family. You don’t 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, which would be overseen by a trusted individual or third party. Your beneficiary would then 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 that is designed to head off challenges will go a long way to giving you and your loved ones 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, it is important for you to work with an attorney who is familiar with the estate planning laws of your state. 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.
Trust an experienced attorney for guidance and advice on these important life concerns. Contact Brandon Erickson at O’Keeffe O’Brien Lyson Attorneys today at 701-235-8000 or 877-235-8002 to discuss how we can help you and your family be prepared.