Will Challenges

Introduction/Overview:

No one
wants their children or other heirs to fight. A lawsuit by an heir, challenging
the validity of your will, resulting in an ugly and costly fight, is one of the
worst tragedies to befall a family. What steps can you take to
minimize the likelihood of a will challenge?

√ Question: What is
the single most important step to take?

√ Answer: Hire a
lawyer that specializes in estate planning to prepare your will and supervise
the signing of it. Don’t do it online; don’t hire an attorney that does house
closings. Get a specialist, and heed the advice they give you. The formalities
of supervising a will signing are strict, and if you don’t address
it properly, the will won’t withstand a challenge.

√ Question: Is it
only about the will?

√ Answer: No, but
unfortunately that’s what most people think. Considering that IRAs, life
insurance, and so many other assets pass outside your will, addressing a will
alone is not enough. You really need a comprehensive plan that deals with how
beneficiary designations, account titles, and other things all interrelate with
what is in your will. It all needs to be coordinated.

√ Question: What is
another often overlooked issue?

√ Answer: Powers of
attorney. You can have the best and most iron clad will, but if someone is named
agent under your power of attorney, they can wreak havoc before you die by
dissipating your assets. So you really need precautions on all
fronts.

√ Question: What is
one of the most common basis on which a will is challenged?

√ Answer: Undue
influence. Someone in a position of confidence, had an incentive to sway you to
favor them in your will or estate plan. There are too many cases of a home
health aid, an over solicitous child, or other relative, taking advantage of an
infirm or elderly testator. An experienced estate planner will often look for
signs of an unnatural dispositive scheme (leaving everything to one child and
not another) and determine if additional precautions are necessary.

√ Question: What if
someone intends to disinherit a child or other heir?

√ Answer: That is a
tough and tragic decision and should only be made for well-thought-out reasons, not in an emotional state. The attorney may determine that their will
should expressly state that they have intentionally omitted that particular
heir.

√ Question: What if
you anticipate a will challenge?

√ Answer: Go back
to your attorney and make some changes in your will and sign it again with a
different set of witnesses. If you make changes it shows you have revisited
your will and re-thought it, but if the main dispositive scheme remains, this
might be a way to reinforce that plan. Every situation is different, use
the help of a local attorney specializing in estate planning to determine which
steps should, and, just as importantly, should not be taken.

√ Question: Any
steps that are, perhaps, best to avoid?

√ Answer: Don’t
jump at videotaping unless your attorney explains why it is really
advantageous. Too often it proves the opposite by undermining the will. Another
mistake to avoid, unless your attorney has a specific reason, is to not use your
will as a means of documenting criticisms, reasons you hate a particular
beneficiary, etc. Ugliness and nastiness are rarely appropriate.