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Elder Law and Estate Planning Blog - Lancaster, PA

Thursday, July 26, 2012

Preventing a Will Contest

A Will is the legal document that declares how a person (the testator) wants to distribute his or her assets after they pass.  You may think that once their wishes are stated, there is no changing them, but an unhappy family member has the right to contest the Will.  Will contests can drag out for years and may keep all heirs from getting their entitled shares.  Although it may be impossible to prevent future relatives from fighting over your Will, there are steps you can take to minimize quarrels and ensure that your intentions are carried out.

The first step to preventing a Will contest is to understand how it can happen.  A family member may contest your Will if they believe that you did not have the requisite mental capacity to execute the Will, someone exerted undue influence over you, someone committed fraud, or the Will was not executed properly.

To make a Will contest less likely to succeed, try following these steps:

  • Make sure your Will is properly executed.  Although this seems like a no brainer, it is a common way for a Will to be contested.  Each state has laws dictating what makes a Will valid.  In Pennsylvania, anyone of sound mind over the age of 18 years old may make a Will.  The Will must be in writing and signed by the testator and this signature must be witnessed by two competent witnesses.  They must also be self-proven before a notary.  The best way to ensure that your Will is properly executed is to have an estate planning attorney assist you in the drafting and executing of the Will.
  • Explain your decision.  If family members understand the reasoning behind your decisions, they may be less likely to contest them.  It is a good idea to talk to family members at the time of your draft and explain to them why someone may be left out or receiving an unequal share.  If you don't talk to them about it, state the reason in the Will.  You may also want to include a letter with the Will with an explanation
  • Use a no-contest clause.  A no-contest clause is one of the most effective way of preventing a challenge, but it will only work if you are willing to leave something of value to the potentially disgrumbled family member.  The way a no-contest clause works is that it allows an heir to challenge the Will, but if her or she loses the  challenge, they also lose their inheritance.  For this to work, you must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
  • Prove competency.  Another common way of challenging the will is to argue that the decedent was not of "sound mind" at the time of the signing.  Avoid this argument by making sure that the attorney drafting the will tests for competency.  This may involve seeing a doctor or answering a series of questions.
  • Videotape the signing.  This may be more on the extreme side, but videotaping your signing will allow family members and the court see that you are signing under your free will and makes the argument of incompetence more difficult.
  • Remove the appearance of undue influence.  To avoid the appearance of undue influence, do not involve any of your possible heirs in the drafting of your will.  Family members should not be present when you discuss the will with your attorney, nor when you sign it.  To be totally safe, they shouldn't even drive you to the attorney's office.

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