How do I Avoid a Will from Being Contested?

AvoidWillContestA will is one of the most important estate planning documents that trust and estate attorneys prepare for their clients. A will is more apt to be the subject of litigation than any other legal instrument. When an heir contests a will, it means they are trying to prove that the will is not fulfilling the wishes or true intent of the testator.Will contests can be financially burdensome and detrimental to familial relationships. As a result, eliminating the possibility of a will contest is essential. The following five steps will help to ensure that your will is not contested:

  1. Include Explanations with Your Estate Plan – The argument that all children should be treated equally may be persuasive to a jury, so if you are treating children in different ways, a fight may be imminent. Explaining why your children are receiving unequal shares is evidence of intent and competence. Additionally, it is wise to discuss your estate plan with the beneficiaries during your lifetime. This can also help you to identify who the contestants are going to be.
  2. Include a No-Contest/In Terroreum Clause in the Will – A no-contest clause may be added into the will to penalize anyone who contests the document. Due to the low chance of success in contesting a will, most lawyers will advise a beneficiary not to contest.
  3. Avoid Significant Changes to a Will During Times of Declining Health – A drastic change in the direction of the estate plan can be evidence of duress or incompetence. This is especially the case where drastic changes are made in times of declining health.
  4. Consider Establishing a Trust – Generally, contesting a trust is far more difficult than contesting a will, therefore creating a trust is advisable.
  5. Strictly Follow the Legal Requirements for Creating a Will – In New Hampshire, under R.S.A. 551:1, in order to be valid, a will must meet the following requirements:

(a.)   The testator of must be competent and of sane mind;

(b.)   The will must be in writing;

(c.)   It must be signed by the testator or by some person at his or her express direction in his or her presence; and

(d.)   It must be signed by two or more credible witnesses who shall, at the request of the testator and in the testator’s presence, attest to his or her signature.

Following these five steps will help clearly define the testator’s intent and ensure that a beneficiary will not try to contest the will.

Author: John S. Polgrean, Esq.