Avoiding a Will Contest

Posted By Jorgensen, Brownell & Pepin, P.C.

10 Apr. 2017

Providing a will is one of the easiest ways to guide your family and lighten their load after you’re gone. By designating who receives each aspect of your estate, you can make the process easier for your loved ones. But, what happens if there is a disagreement? During such a highly emotional time, it isn’t uncommon for family to argue, but in some cases this could lead to a will contest.

A will contest occurs when a family member believes he or she not receive what was left to them, and therefore challenges the will’s validity, or the testators. The will contester is typically left out of the will, or was left less money than they expected. In many cases, this could lead to a lawsuit. In order to prevent this from happening to your will, there are steps you can take to ensure your will is not contested.

Ensure the Validity of Your Will

Make sure your will is properly executed by having it looked over by an attorney who specializes in elder law or estate planning. For a will to be effective, it must be signed and witnessed, usually by two independent witnesses. You may even choose to record a video documenting the signing of your will to remove any doubt. The visual proof of the testator’s endorsement would be difficult to contest, should anyone try.

Prove Competency

A will is only valid if the testator is deemed competent and of sound mind. Someone could contest a will by claiming the person was incompetent at the time he or she signed or wrote the will. Luckily, to avoid this your attorney can test you for competency by sending you for a doctor’s visit, or by asking you a series of questions to prove your capable mental state.

Avoid the Possibility of Undue Influence

Another way to contest a will is by arguing that someone held undue influence over the testator. To avoid this, do not allow family members to be present when you draft your will with your attorney.

Use a No-Contest Clause

Also referred to as “in terrorem clause,” the no-contest clause prevents heirs from challenging the will by ensuring that, should they lose, they be left with nothing. The no-contest clause only includes heirs, or any person the testator leaves something of value to. This can be one of the most effective ways to ensure a will is not contested, because whoever contests it must be willing to lose everything by trying.

Explain Your Will to Your Family

Once your will has been written, speak with your family about the reasons behind your decisions. If they understand how you feel, they may be less likely to dispute the will later. It is also a good idea to have a written explanation to go along with your will.

To ensure that your will is properly taken care of, contact Jorgensen, Brownell & Pepin, P.C. and discuss the best plan for you.

Categories: Estate Planning, Elder Law
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