Writing a Will is the best way to plan your estate and distribute all the assets you’ve accumulated throughout your life after you pass away. Knowing that your wishes will be followed and that those who mean the most to you will correctly receive what was allocated to them after you pass on allows you to approach this date with a much greater peace of mind. What you will be unable to see, however, is any possible contention to your Will.
It estimated that up to 3% of Wills in the United States are contested in some form. The only people who have the ability to contest a given Will are individuals who would be legally entitled to a share or a greater share of the estate if the Will was declared invalid. Unfortunately, this means the most common contestants of Wills are spouses, children, and grandchildren. Even though it may be implausible to think that someone you love would try to take more from your estate, meaning they are taking from your other family members’ share of your estate, than what you thought was fair to give them, it is always good to plan for this scenario as no one can predict the future. This plan is important, especially if someone who would be entitled to a share of your estate was purposefully cut out or given a diminished share due to a prior falling out.
To prevent a contested Will, it is best to understand the reasons why some Wills are declared invalid and avoid them. It should be noted that the burden of proof in contested Will cases is on the individual who is contesting the Will. Meaning, they have to prove that it was more likely than not that the Will, for whatever reason, was not an accurate reflection of your wishes. There are multiple avenues by which this can be done:
- 1.-Undue Influence– This refers to the outside influence someone is under while the Will was written and signed. This usually relates to claims of physical or mental abuse, threats, and isolation (if you are disabled and/or in need of a caregiver). Claims of undue influence typically arise when the caregiver of an elderly and/or disabled individual, which usually tends to be a child or close relative, receives more than what is perceived to be their fair share from the estate. It is reasoned that it would be impossible for them to be given more, or a certain percentage more, than their counterparts without exercising some type of abusive behavior.
- 2.-Improper Execution– The rules and regulations for executing a Will are particularly strict and must be closely adhered to. The first rule is that there must be two witnesses to the Will. These witnesses must sign the Will in the presence of the person whose Will is being written (testator) and of each other. These witnesses must also attest, under threat of perjury, that they believed the decedent was of legal age, sound mind, memory, and understanding. Additionally, the testator must declare, in front of the witnesses, that they read the will, understood what they read, and declare that it is their last Will and Testament. The testator must also approve of the two witnesses who will observe the signing of the Will.
- 3.-Incapacity– Despite the witnesses’ testimony that they believed the testator was competent and able to sign the Will, a challenge could still be made that the individual was unable to read the Will due to poor eyesight. Another potential challenge could claim that the testator was unable to comprehend the Will, what property they owned, and/or who their heirs were, due to some type of mental defect. These claims require medical proof.
Due to all the avenues one can go down in order to contest a Will, it is likely impossible to prevent someone from contesting your Will. However, it is very possible to make sure that if your Will is contested, that it will be impossible to overrule. To ensure your estate is distributed according to your wishes after death, it is best to consult with a lawyer before drafting your Will to account for all the ways your Will may be challenged.