Dodging Will Contests
Few things can be as destructive to a family as a Will contest – usually children fighting over a Last Will and Testament that treats them unequally.
Fortunately, there are steps that can be taken to discourage such legal disputes.
If the inheritance left by a parent is to be divided evenly between all the children, the chance of a Will contest is almost nil. The reason for that is simple: If the Will is thrown out, the children will all still all receive an equal inheritance, so there is really no impetus to attack the Will.
But if a parent plans to leave unequal shares to the children, or if a parent intends to leave one child out altogether, then the risk of a legal battle increases.
But since a parent has the legal right to favor some children over others in matters of inheritance, a Will contest will typically not be successful unless the aggrieved child can demonstrate that (1) the parent was mentally incompetent when the Will was made, or (2) the parent was enticed or coerced by the favored child to exclude the other children from an inheritance.
In the absence of credible evidence of such a circumstance surrounding the making of the Will, an effort to throw out the Last Will and Testament will normally not be successful.
To disprove such circumstances and keep the Will safe from a legal challenge, a parent who is starting to have memory issues may ask his or her physician for a letter confirming that the parent is mentally competent to make estate planning decisions. A copy of that letter should be stored with the original Will.
Or, if one child is to be favored, it would be best if that child does not participate with the parent in the meeting between the parent and his or her estate planning attorney. Instead, the child should excuse himself or herself from that meeting (or be excused by the attorney) so that the attorney can be sure there is no enticement or coercion effecting the parent’s decisions.
Finally, there is some added protection arising from a “no-contest” provision in the Will that specifically states that any person who seeks to challenge the Will is not to receive any inheritance regardless of the outcome of the challenge. Although such a provision may be legally questionable, as a practical matter it does tend to force the disgruntled child to think more carefully before launching such a challenge. Consequently, including this provision is still a good strategy.
Author: Barry Peters. For additional easy-to-understand information on Wills, Trusts, and Probate, call attorney Barry Peters’ offices at (208) 939-2600 for your expedited appointment for a FREE OFFICE CONSULTATION or visit his Q & A pages at BarryPeters-Law.com/answers-to-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.