A Last Will and Testament, the cornerstone of a proper estate plan, allows us to determine how our property will be distributed upon our death. Wills are meticulously planned by testators and their attorneys to account for a variety of unknown circumstances which may arise after death. Despite all of the methodical and detailed drafting that goes into a Will, wills are sometimes contested.
A Will Contest is a formal objection against the validity of a Will. The most common reasons for contesting a Will are:
- The individual contesting the Will believes the testator lacked the mental capacity to execute the Will;
- The individual contesting the Will believes that the Will does not contain the testator’s actual intent due to fraud or undue influence exercised by a 3rd party; and
- The individual contesting the Will believes that the terms are unfair and that the Will does not provide the individual with what that person believes he/she deserves.
When a Will is contested, legal fees can skyrocket: the probate process is slowed down or halted entirely, discovery of evidence and adversarial hearings are conducted. The processes involved in a will contest can deplete the resources of the estate, and most unfortunate of all, family relationships can be irreparably damaged. Luckily, there are several things we can do, as testators and as estate planning attorneys, to avoid Will contests.
Insert a “No Contest Clause” Into Your Will
A No Contest Clause provides that if an individual contests your Will, that individual will not receive anything from your estate. A No Contest Clause takes away the financial incentive for contesting a Will by making the inheritance contingent upon the beneficiary’s acceptance of the Will’s terms.
Have a Doctor Certify Your Mental Capacity
If you, or your estate planning attorney, is concerned that someone may contest your Will based on a lack of mental capacity, consider having your physician certify your mental capacity. This is a straight forward process which involves your doctor administering a Mini-Mental Exam. A Mini-Mental Exam consists of simple questions, such as “What is the year?” “Where are we right now?” The Exam also requires the taker to complete routine tasks of daily living, such as identify objects in pictures, repeating phrases, writing sentences, and short-term memory recall exercises. Taking the Mini-Mental Exam, allows your physician to properly assess your mental capacity and, at your request, to certify in writing your level of mental capacity.
Minimize the Involvement of Beneficiaries During the Drafting Process
Creating a plan for what will occur after your death can be an emotional and difficult experience for some people. As such, we sometimes need emotional support from our loved ones during this process and our loved ones are most often the beneficiaries of our Wills. While having a loved one assist you through this process can be helpful, it also opens the door for the allegation that the loved one exercised undue influence over you and that the terms of the Will do not contain your actual intent. If you minimize the involvement of your beneficiaries and loved ones during the drafting process, the grounds for a Will contest based on undue influence or fraud is greatly diminished.
Record Your Will Signing Ceremony
Another way to minimize the risk of a Will contest on the basis of lack of capacity and undue influence is to record video footage of your actual Will signing ceremony. The video footage should reflect that you understand the terms of the Will you are about to sign, that the contents of the Will accurately reflect your testamentary intent, that you sign the Will free of undue influence, fraud and force. You may also consider including a verbal statement explaining the terms of your Will.
Include Letters of Explanation to Your Beneficiaries
After someone dies, we are left with the terms of a Will and most often, no explanation as to why the testator opted to distribute his/her property in the manner dictated by the Will. The question of “why” most often comes into play when you treat one of your beneficiaries differently than the others. Unequal treatment, especially among siblings, can lead to hurt feelings, which could ultimately manifest in the form a Will contest. By providing your beneficiaries with letters of explanation, you can attempt to assuage hurt feelings and answer the “why” for them. These letters can be stored with your original Will for your Executor to distribute to your beneficiaries after your death.
Review Your Estate Plan Regularly
It is important to review your Will and other estate planning documents on an annual basis. Major situational and family changes can occur at any time, without warning, and these major changes often alter our testamentary intent. If your Will reflects an outdated situation, that Will most likely no longer contains your testamentary intent. A regular review of your Will can ensure that your testamentary intent is accurately reflected and will reduce the likelihood of a Will contest.
Do Not Procrastinate
We often delay in tending to our estate planning needs because the topic makes us feel awkward and uncomfortable. We have no way of knowing when we will die or become incapacitated. An estate plan is completed well in advance of any mental capacity deterioration will support the contention that you had the mental capacity to execute your Will and that the Will contains your actual testamentary intent. If you procrastinate too long, you may miss out on your ability to properly execute a Will.
Make a consultation appointment with the Springer Law Firm today to speak with one of our experienced estate planning attorneys who can guide you through the estate planning process.