Having an updated last will and testament is more important than ever. However, a will that is poorly drafted or not up to date can be vulnerable to a contest. A contest 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) the will does not meet certain 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 your family. Proper planning, however, can minimize the odds of that happening.
Who Can Contest A Will?
Will contests are usually brought on by individuals who believe they have been wrongly disinherited. Not everyone has the ability to contest your will in court, however. 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, the court will declare the will invalid and “throw it out.” If there is a previous will, 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.
Depending on your circumstances and goals, a trust can have superior benefits to a will, such as better asset protection and enhanced privacy by keeping your personal information out of probate, which is public.
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 their assets, their family relationships, and the legal effect of signing 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.
- 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 want to avoid at all costs. Not only will it jeopardize your final wishes, but it can also cause unnecessary and painful conflict among your loved ones. 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 is important to discuss your wishes with your family. Letting beneficiaries know of your wishes and setting expectations can help avoid future will contests.
- Do not just disinherit wayward child(ren). Instead of completely disinheriting a beneficiary who may squander their inheritance, you can hold their inheritance in a lifetime discretionary trust, which would be overseen by a trusted individual or third party.
- Keep your will up to date. Life changes, and your wishes may change. Your will is only effective when it reflects these changing circumstances. Having an updated plan that encompasses your current goals will be better at discouraging 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 one’s peace of mind. And 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.