How to Prevent a Will Contest
A will contest is a lawsuit that is brought to challenge the validity of a Last Will and Testament. Will contests often occur after an heir or family member perceives some inequity or unjustness in the distribution of money or possessions laid out in the will. This can be the result of a lack of requisite mental capacity to execute the will, another’s undue influence over the testator, fraud, or improper execution of the will.
Testators may account for these occurrences while drafting the will and follow steps to make a will contest less likely to succeed.
Ensuring a will is properly executed can severely limit the ability for a will contest to succeed. An experienced elder law or estate planning attorney can assist with this process and verify that a will is executed according to the law.
A no contest clause, or in terroreum clause, is a provision included in a will that can be used to strip the inheritance from anyone who contests the will if that person loses the lawsuit. A disgruntled family member will often not risk losing his or her inheritance over a perceived injustice in the will and will choose not to contest it.
Proving competency at the time the will is drafted may prevent a will contest over the testator’s mental capacity after he or she has died. Drafting attorneys can check for competency by sending the testator to a doctor or by asking the testator a series of questions. A videotape of the testator signing the will may help to show the court that it was signed freely and with the requisite mental capacity to agree.
Explaining the will to family members or leaving a related letter to be read after the testator’s death often goes far in assuaging family members and preventing will contests. Explanations for how provisions were distributed may help an inheritor to understand why he or she should not feel slighted.
To remove the possibility of allegations of undue influence, the testator should draft the will independently and without family input, especially if the testator is under the care of another family member.
For more information about will contests or to limit the possibility of a will contest, contact an experienced New York estate planning attorney or New York elder law attorney. Visit www.littmankrooks.com or www.elderlawnewyork.com for more information.
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