A will is “contested” when someone – usually a person who was disinherited or thinks he or she received less of an inheritance than expected – challenges the will’s legitimacy in court. Typical ground for challenging the validity of a will are:
- The decedent was not of sound mind when he or she made the will.
- The decedent was under duress or undue influence when the will was made.
- The will itself is defective because it was either not signed, properly witnessed, or some other deficiency that may lead to it being invalidated..
- Allegations of fraud or the will was altered by someone other than the decedent.
If your will is successfully challenged, a the probate court may invalidate all, or part of it, and, if so, your property will not be distributed according to your desires. Instead, the court may use a prior will if one was made or may divided the property based upon the state’s intestate succession statutes.
Reducing The Chance of A Contest
There are several ways to reduce the risk of a future will contest:
- Follow the law concerning the technical requirements such as the number of witnesses, who may witness, that it is signed, when it is signed, in what order, etc. To make sure that you comply with the laws, have it prepared by a reputable lawyer and choose reliable witnesses who would be willing to appear in court to testify if so needed.
- To show that you are "of sound mind" to make a will, you can obtain a letter from your doctor certifying that you are legally competent.
- Don't pass major or significant assets under your will. If you think someone may contest your will, consider other ways to transfer your property such as a trust, which is typically more difficult to challenge.
- Passing major assets outside your will – for example, through a trust – helps reduce the chance of a contest because there will be less assets subject to the probate court and, therefore, a disincentive to challenge.
- Include a “no contest” clause in your will which indicates that if a beneficiary contests your will, the gift is voided. It forces them to take what you give them under the will, or to risk losing it all. The enforceability of “no contest” clauses varies from state to state, so it’s important to seek the advice of a lawyer to increase the chances a judge will enforce the clause. Notwithstanding the enforceability, just the presence of a "no contest" clause can deter someone from challenging a will.
Will contests can be expensive to your estate and also lengthen the time it takes for your rightful heirs to receive property. By taking the proper steps in advance, you can help reduce the chance of someone contesting your will, which results in your heirs receiving the property you want them to get faster and with less expense.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.