last will

How to Protect Your Will from Unhappy Family Members

Regularly updating your will does more than adjusting for life changes and modifications of the law – it helps to protect the will from contestation. Contestation is the often expensive, lengthy process of formal objection to a will or trust’s validity. An individual may contest the will or trust on the grounds that it does not meet legal standards or does not reflect the actual wishes of the decedent.

Whenever possible, will contests should be avoided. Legal fees drawn from the estate can deplete assets, and a lengthy court process can cause stress and friction between family members.

Proper planning can keep that from happening.

 

Who Can Contest?

In order to contest a will, a person must have legal “standing.”  Standing is the ability to bring a will contest.

Standing for a will contest is a question of whether a person will be directly affected by the outcome of a will contest. The law of each state sets provides some specific categories of individuals withstanding, including:

(1) Current beneficiaries named in the will;

(2) Prior beneficiaries who were named in a previous version of the will, but were removed in later updates; and

(3) An individual not named in either the current or prior will versions, but who would be able to inherit if the decedent had no will (“intestate”) – this is usually a spouse or biological child

Planning tip: A trust may work better for your situation than a will. Trusts can offer privacy (separation from the public process of probating a will) and better asset protection. If you’d like to learn more about the differences and your options, call our office at 609-580-1044.

What Can They Contest?

Once a person has passed the first step of showing they have legal standing, he or she must prove the will is invalid due to one or more of these reasons:

1. The will is incomplete or invalid. For a will to be valid, it must follow certain formalities (e.g. signed by a certain number of witnesses, signed by the decedent, containing certain text) that vary by state.

2. The person who made the will lacked mental capacity. To make a valid will, a person must understand what the creation of the will does, including the context of (a) his or her assets; (b) his or her family relationships; and (c) the legal effect of signing a will. Different states have different thresholds for the mental capacity required to make a valid will.

3. The person who made the will was “unduly influenced.” Undue influence means more than nagging or arguments. In New Jersey, it must be so extreme that it has “destroyed the free agency of the testator [maker of the will]…” Gellert v. Livingston, 5 N.J. 65 (1950). Undue influence claims are heavily dependent on the facts of the situation.

4. The signing of the will was fraudulent. This can include deception as to what a person is signing, or providing a document to the signer with changed provisions without the signer’s knowledge. Procuring a signature to a will by fraud renders the will invalid.

How to Prevent Will Contests

Will contests are expensive, stressful, and can result in unwanted changes to your final wishes. To prevent or lessen the risk of will contests, there are several measures you can take:

  • Work with a professional. Doing your own will can result in a will contest over easily avoidable formalities of state law or leave you vulnerable to the dissatisfaction of a relative or business partner. An experienced estate planning attorney can help create and maintain a plan that discourages contests.
  • Talk to your family about your wishes. When you let your family know what you want to happen, it sets expectations, allows for discussion, and decreases the risk of emotional upheaval from will contest in an already difficult time.
  • Consider options apart from disinheritance. If you have concerns about a family member or other beneficiary, you have options apart from either passing assets directly to them or not. Lifetime discretionary trusts that distribute money or assets over time, overseen by a trusted individual or third party, can meet your concerns without creating conflict that can lead to contest.
  • Update your will regularly. Your life will change over time – new house, new marriage, new baby – and your will should change alongside. By keeping your will up to date, you discourage future contests over outdated bequests.

The Takeaway

A will or trust contest is always possible, but by being proactive you can make that risk decrease or disappear. Make sure that the attorney you work with for your estate planning specializes in wills and trusts – just signing a will in a lawyer’s office does not guarantee that it will be valid. Make sure that your family is protected by an expert, and make especially certain when you intend to disinherit or favor one part of your family.

We can help you create and maintain an estate plan solidified against contest. Call our office to schedule a consultation at 609-580-1044.