Have you ever wondered whether your will is vulnerable to contestation? And what is contestation, anyway? It is the formal objection to a will's validity because it either (a) doesn't reflect the wishes of the person who created the will, or (b) because the will does not meet legal standards. Will contests should be avoided at all costs. Not only can a contest derail your final wishes, but it can also rapidly deplete your estate and wreak emotional havoc on the family members left behind. Fear not. With proper planning, you can prevent that from happening.
Who can contest a will?
Will contests are usually brought on by family members, close friends or beneficiaries who believe they have been wrongly disinherited. However, not all of your family or friends have the ability to contest your will in court They must have legal "standing", which means that the person involved in the lawsuit will be personally affected by the outcome of the case.
The following people have the ability to contest a will in probate court:
- current beneficiaries that are named in the will;
- previous beneficiaries who were disinherited but were included in a previous will
- an individual not named in the will but who would be eligible to inherit property based on a state's intestacy laws, which would be typically a biological child or spouse
If a will is successfully contested, then the court will declare the will invalid and "throw out". If there is a previous will, then the court will abide by the terms of the previous will. If there are no other estate planning documents, the state's intestacy laws will decide who inherits what property. As you might expect, this can be a disastrous outcome for your intended beneficiaries.
Planning tip: Depending on your circumstances and goals, a trust can have superior benefits to a will in Wyoming: better asset protection, enhanced privacy, better tax consequences, more flexibility, ability to provide for beneficiaries over time, and other benefits. If you would like to learn more about the differences between trust and a will, and see what is a better fit for you, please call my office. (307.200.1914).
What are the four legal reasons a person will have standing to challenge your will:
- The will is incomplete or faulty. Each state has specific laws that dictate how a will must be signed in order for it to be legally valid. A will that has not followed these rules: signed without proper number of witnesses; signatures missing; or omitting important text--could be contested.
- Lack of mental capacity. Having the capacity to make a will means that the person understands (a) their assets (b) their family relationships and (c) the legal effect of signing a will.
- The person making the will was unduly influenced into signing it. As people age and become weaker both physically and mentally, others may exert influence over their decisions, including how to plan their estate. Undue influence can be exerted on the young and the not so young. Undue influence is more than just nagging or verbal threats. It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.
- The will was procured by fraud. A will that is signed by someone who thinks they are signing some other type of document with different provisions is one that is procured by fraud.
How to avoid a will contest?
- Do not do it yourself!. Even the smallest mistake can leave your wishes vulnerable to being contested by an unhappy relative or business partner. Only an experienced estate planning attorney will be able to help you create and maintain a plan that will discourage lawsuits.
- Discuss your wishes with your family. It is important to discuss your wishes with your family. You don't have to discuss the intimate details of your estate plan, but letting beneficiaries know of your wishes and setting expectations for your agents can help avoid future will contests.
- Keep your will up to date. Life changes--people are born and die, property is acquired, marriages happen and your wishes change. Your will is only effective when it reflects these changing circumstances. Having an updated will that reflects your current goals will be better at discouraging any future challenges.
The takeaway on will contests.
Ensuring that your estate plan is protected against these legal grounds is especially important if you wish to disinherit or favor one part of your family, if you have already gifted some of your estate to certain beneficiaries, if you have minor children, if you have a beneficiary with special needs, or if you believe you are will or are becoming ill.
If you wish to discuss your estate plan, please call my office at 307.200.1914 for a free telephone or videoconference.