To start off, it’s worth mentioning that there is nothing you can do to guarantee against a will contest taking place, short of not having any estate at all when you pass away (spending your last dollar on your last day is, arguably, the best possible estate plan!). The reality is that anyone can petition the probate court to contest your last will & testament, regardless of the circumstances. So, the focus should be on minimizing the probability of a successful will contest upon your death.
Every will contest is different, but there does seem to be one common theme: the will contest was started because someone felt unjustly short-changed. So, if there is a “black sheep” in your family that you’ve disinherited, which means you can probably see the will contest coming from a mile away, here are some approaches to consider:
Make ‘em Think Twice. Stick a “forfeiture” or “in terrorem” clause in the will directing that the person you were going to disinherit is…well…no longer disinherited! Instead, he will receive a specific amount of money ($5K, $10K…it’s up to you) unless he decides to formally contest your will, in which case that money disappears, and he gets nothing. This forces him to decide between (a) spending tons of time and money on litigation which may or may not succeed in the end, or (b) take the money and run because although it’s not a fortune, it’s much better than nothing. You may not be thrilled with the concept of this person getting a payment from your estate, but that investment of a few thousand dollars could save the estate ten times that amount in legal fees spent on defending the will, not to mention a year or two in court.
Recruit Special Witnesses. If the two witnesses to your will signing are deposed or need to testify in front of a jury during the will contest, you will want them to have a detailed memory of the event. If the witnesses are a couple of paralegals from your attorney’s office, it’s possible that they have witnessed hundreds, perhaps thousands of will signings and will probably have zero recollection of your particular signing. Instead, if you bring a couple of neighbors who have never witnessed a will signing before, they will have a very detailed memory of your signing and can testify with confidence that you knew exactly what you were doing when you signed your will. This testimony alone may be enough to sink a will contest.
Get a Doctor’s Note. Whenever the decedent was elderly, there is a chance that the family troublemaker will try to argue in court that the decedent’s memory wasn’t very sharp, or perhaps her diminished mental capacity left her open to undue influence from others. Perhaps the best legal defense against this would be an evaluation from a doctor, dated fairly close to the date the will was signed, indicating that the decedent’s mental health was fine.
Clear the Room. “Undue influence” is probably the most common legal argument in support of a will contest; that the decedent was brow-beaten into signing the document against her will. This is an easy argument to make if all of the children, with the exception of the disinherited child, were in the room when the will was signed. So, you can make it a harder argument if the only other folks in the room are the two objective witnesses and the attorney.
Video. Videotaping the signing is another approach that could help fend off an argument of undue influence or lack of mental capacity. However, if you tend to get nervous in front of cameras then this could obviously backfire by showing the jury a jumpy decedent who perhaps was being threatened by someone off-camera.
The reality is that worst-case, you could use all of these approaches (plus some others that aren’t listed) and you may still end up with a will contest if the disgruntled party is motivated enough. But using techniques like these will make it harder for the will contest to be successful, and you could end up with a favorable settlement.
DISCLAIMER: This blog does not offer legal advice, nor does it create an attorney-client relationship. If you need legal advice, consult with a lawyer instead of a blog.
