Keeping heirs from contesting your Will!

Keeping heirs from contesting your Will!

There is no perfect way to prevent people from contesting your Will or Trust in Idaho.  But there are ways to discourage that from happening.  And there are ways to make such a contest less likely to succeed.

What tends to create Will and Trust contests?  The answer is simple:  Either people (1) who believe they are entitled to a larger share than was left to them or (2) who believe they can get a larger share of the inheritance if the Will or Trust is overturned in court.

How can a legal assault on a Will or Trust succeed?  There are two main reasons why a Will or Trust contest may be successful.  They are that (1) the person making the Will or Trust was mentally incompetent to do so; or (2) the person was threatened or deceived into making the Will or Trust.

As far as defensive strategies, several that should be successful in the Boise, Meridian, and Eagle area come to mind.

First, an Idaho Will or Trust that leaves everything to a surviving spouse or to all surviving children in equal shares is much less likely to be challenged than one that skews the inheritance in favor or certain children.  The reason for this is simple.  If a court can be convinced to throw a Will or Trust out, certain state laws are then applied which will effectively divide the decedent’s property evenly between the surviving children (with a portion going to the surviving spouse if there is one).  So, keep in mind that an equal distribution between the children will tend to diminish the chances of a Will or Trust legal battle.  On the other hand, if there are valid reasons to enhance the inheritance of certain children, one should not be hesitant to do so.

Second, for a person who is of advanced years, it may be wise to obtain a letter from his or her primary physician to the effect that the physician believes that the person is competent to make his or her own decisions.  This will go a long way toward fending against a Will or Trust contest based on an allegation of mental incompetence.  But, again, the best defense may be to leave one’s estate to the children in equal shares if possible.

Third, any Will or Trust should include a “No-Contest” provision that says that anyone who contests the document shall receive no inheritance under it.  In the interests of full disclosure, though, I do have to admit that there is a statute in Idaho that says that such a requirement will not be enforced by Idaho’s courts.  Essentially the courts want an heir to be free to come forward with evidence of incompetence or coercion and not have to “bet the ranch” on their ability to be successful.  But having said that, it still makes sense to include such a provision in the Will or Trust in the hopes that it may discourage people from contemplating a contest.

Fourth, having your Will or Trust professionally prepared by an experienced attorney or lawyer will ensure that the technical requirements imposed by Idaho law are fulfilled.  Do-it-yourself or on-line Wills and Trusts often violate one or more of the requirements for witnesses, notarization, or content that are imposed by Idaho law.  Those documents tend to be much more easily thrown out in a legal contest.  Whether you live in Ada County or Canyon County, using a skilled attorney is the best first line of defense in a situation that may result in a Will or Trust contest.

Finally, if the Will or Trust favors one or more children over others, it would be advisable to make sure that your lawyer or attorney has at least one meeting or session with the parent with the children either not in attendance or dismissed from that portion of the meeting.  That will permit the attorney to ask questions and independently understand the basis for the decision to prefer certain children over the others.

While there is no airtight method of precluding a Will or Trust contest, the foregoing steps should make it extremely doubtful that any such contest would be successful.

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Whether you live in Boise, Meridian, Eagle, Star, Nampa, or other nearby communities – in fact, anywhere in Ada County or Canyon County – for additional easy-to-understand information on Idaho Wills, Trusts, probate, and estate taxes, visit the user-friendly website at BarryPeters-Law.com.  Then call attorney Barry Peters’ offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at BarryPeters-Law.com/common-questions.  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.