Family members can challenge estate planning documents or contest a loved one’s will upon a death. However, there are steps you can take to lessen the chances of this happening and to protect your wishes and legacy after your death.
Familial disputes over estate planning documents often arise from confusion, surprise, or perceived unfairness. Disputes rarely arise from legal flaws. If your estate plan is well prepared, sound, and structured with a clear framework of your intentions, you can save loved ones from the trouble and the risk of misunderstanding and the pitfalls that follow. Take specific and cautionary steps to help protect your plan from such challenges.
Demonstrate A Lack Of Undue Influence
Loved ones challenging your will after death might be by claiming that someone asserted undue influence over you. This essentially means the person influenced you to make estate planning decisions that would benefit themselves but that were inconsistent with your true wishes.
A certain level of influence over your final decisions is permissible. For example, there’s generally nothing wrong with a daughter encouraging her father to leave her the family vacation home. But if the father is in a vulnerable position — perhaps he’s ill or frail and the daughter is his caregiver — a court might find that he was susceptible to the daughter improperly influencing him to change his will.
There are many techniques you can use to demonstrate the lack of any undue influence over your estate planning decisions, including:
Choosing reliable witnesses. These should be people you expect to be available and willing to attest to your testamentary capacity and freedom from undue influence years or even decades down the road.
Videotaping the execution of your will. This provides an opportunity to explain the reasoning for any atypical aspects of your estate plan and can help refute claims of undue influence (or lack of testamentary capacity). Be aware, however, that this technique can backfire if your discomfort with the recording process is mistaken for duress or confusion.
In addition, it can be to your benefit to have a medical practitioner conduct a mental examination or attest to your competence at or near the time you execute your will.
Follow The Law For Proper Execution
Never open the door for someone to contest your will on the grounds that it wasn’t executed properly. Be sure to follow applicable state laws to the letter.
Typically, that means signing your will in front of two witnesses and having your signature notarized. Be aware that laws vary from state to state, and an increasing number of states are permitting electronic wills.
Consider A No-Contest Clause
If your net worth is high, a no-contest clause can act as a deterrent against an estate plan challenge. Most, but not all, states permit the use of no-contest clauses.
In a nutshell, a no-contest clause will essentially disinherit any beneficiary who unsuccessfully challenges your will. For this strategy to be effective, you must leave heirs an inheritance that’s large enough that forfeiting it would be a disincentive to bringing a challenge. An heir who receives nothing has nothing to lose by challenging your plan.
Be Proactive Now To Avoid Challenges Later
Other aspects of your estate plan, such as trusts and beneficiary designations for retirement plans and life insurance, could also be challenged. Taking steps now to lessen the risk of successful challenges to any of your estate planning documents can help protect your legacy and provide clarity and peace of mind for your loved ones. We can help you with the financial aspects of your estate plan that accurately reflects your intentions – contact our estate planning advisors.
