Berge & Berge, LLP Blog

Monday, July 17, 2017

How Can I Prevent Someone from Contesting My Will?

It is a sad but true fact. The body is not yet in the ground, and the relatives are squabbling over the inheritance. Did dear old Aunt Edna leave a will? Was anyone disinherited and did anyone get a windfall? Did she stick it to all of you and leave everything to charity?

There are ways to avoid these ugly disputes among family and friends. If you do not want your loved ones turning on each other after you are gone, you may be asking, “How can I prevent someone from contesting my will?” Talking to an estate administration lawyer is the first step.

Put it all on the table

When people know what to expect, they are less likely to challenge the will. Avoid any dramatic surprise when people learn the terms of your will. After all, there is often no formal reading of the will, so the reality will be much more mundane than it is in the movies.

If you are giving more to one person than to her sibling, let them both know in person, and explain your reasons. One person may have a medical condition or be a caregiver for an elderly or disabled person. While you do not have to justify what you do with your money, it will help your loved ones understand your reasons. When you discuss why you feel one person has a greater need than another, you can prevent family rifts and resentment.  

Eliminate the standard challenges

Common challenges to wills include:

  • Mental incapacity

  • Undue influence

  • Fraud

  • Duress

  • Invalidity

If you are over the age of 70 or have a history of mental illness, you should get a “letter of capacity” from your primary care doctor stating that you are of sound mind at the time you are making the will. This step will help prevent arguments that you suffered from mental incapacity.

You should go to the lawyer by yourself to discuss and then sign the will. Do not have anyone who will receive anything from your will go with you or even drive you there. This tactic will help avoid claims of undue influence.

Speaking openly with your heirs about your wishes and the terms of the will can defuse charges that there was fraud or duress. When there is fraud or duress, the terms of the will usually contradict your wishes. Letting people know your wishes and intentions will protect you from wrongful charges or fraud or duress, as well as serve as a red flag to your heirs if someone shows up with a will they claim was yours.

It is trendy for people to write their own wills using generic forms they buy on the internet. While this saves money at the time you write your will, it can cost your estate tens of thousands of dollars or more if the will gets challenged for being invalid. To avoid will invalidity, you should have an estate planning attorney draft your will.

Make Them Pay

There are practical ways to discourage people from filing frivolous will contests. If someone is dissatisfied with the amount he receives in a will, he may feel he has nothing to lose by filing a challenge. Include a provision in the will that deducts from the share of unsuccessful challengers all the expenses of defending the will. When you avoid will contests, you save your estate great expense. For assistance in drafting your will, contact that Law Offices of Berge & Berge today at 408.389.6980

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