Some people cannot avoid a will contest despite their best efforts.
Estate battles of the rich and famous are often in the news.
Small mistakes in ones estate planning can put thousands or millions of dollars in assets at risk.
For example, John Lennon failed to name is first son in his last will.
The will contest challenged whether this was a by design or by default.
According to a recent MSN article titled “Counterattack: Tips for Thwarting a Will Contest,” sometimes estate plans can be constructed well but can yet still be contested.
Family and friends are simply unhappy with the results.
James Brown left the majority of his estate to charity with very little to his family.
Huguette Clark left two last wills created just 42 days apart to distribute a $400 million estate.
The second disinherited individuals named in the first last will.
Although you can discourage a will contest by placing an “in terrorem” provision into a revocable trust or a last will, this must be done proactively.
These no-contact clauses can (and should) trigger a forfeiture of inheritance to anyone who contests the estate plan.
There is a limitation, however.
Some states do not allow for the enforcement of no-contest clauses.
What options do you have if a no-contest clause is not an option?
Your executor or trustee will likely be fighting a will contest or trust contest in court after your death.
You could put in your plan a requirement for a mediation of disputes.
Some states allow for arbitration to resolve a will contest rather than litigation.
If this is not an option, you could designate the fund to be held in escrow and restricted during litigation.
The interest would be paid to the beneficiary but would have any litigation expenses deducted.
Another way to protect yourself is through addressing common causes for will contests.
What are these?
The first is incapacity.
To preempt this cause for a will contest, have two independent physicians evaluate you and sign statements you can attach to your last will and/or trust indicating good mental capacity.
The second is forgery or undue influence.
You should include a statement about your intent and reasoning for your estate planning decisions.
The third is invalid execution.
Work with an experienced estate planning attorney.
If your family is particularly litigious, you can video the execution of the estate plan.
You also can identify the beneficiaries and explain your distribution plan.
Having a third-party certify the authenticity of the video and having signed statements from the notary and witnesses can further help.
The fourth reason is having a trust or last will created at a later date.
You should include a statement in the video about how the plan is the most recent and has not been revoked.
Although it is not always possible to deter a will contest, you can take steps to help ensure your estate plan will survive scrutiny.
After all, some folks have loved ones who grow up and other loved ones who just keep having more birthdays.
Reference: MSN (Nov. 9, 2022) “Counterattack: Tips for Thwarting a Will Contest”