Though will contest actions are rarely successful, they can be financially burdensome to the estate and non-contesting beneficiaries, and can be emotionally taxing for a decedent’s family. A will can be invalidated based on undue influence or duress exerted on the decedent, fraud, a decedent’s lack of capacity at the time the will is executed, or failure to follow the legal rules applicable to wills. Following are 10 strategies for defeating will contest actions or cutting them short in the early stages of litigation.
1. CONSIDER PASSING ASSETS PURSUANT TO A LIVING TRUST – Contesting a trust is much more difficult than contesting a will. Will contests are a somewhat common occurrence, while trust contests are not. Will contests are also frequently taken on a contingency fee basis, meaning that the contestant has nothing to lose. Often times, weakly founded actions are filed in hope of settlement. Trust actions are less commonly taken on a contingency fee basis, meaning that the chances of prevailing must be significant enough for the contestant to fund the litigation. Finally, the right to information regarding a trust is limited to its beneficiaries and a trust need not be filed with the court. Thus, the privacy advantage over probate brings less attention to the disposition of the decedent’s assets – and less attention to heir search firms.
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Wills, Trusts, & Estate Planning Updates
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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